Claiming the Constitution

Set aside the clumsy spectacle and the unseemly editing, and last week's reading of the U.S. Constitution on the floor of the House of Representatives underscored an important and timely truth: Crucial aspects of America's immediate future will hinge on legal judgments about the meaning, reach and force of the founding document of our nation's system of government.

Multiple lawsuits challenging the new health care reform law already have drawn conflicting early rulings from federal judges in different parts of the country. In one form or another, these disputes will wind up before the U.S. Supreme Court for resolution of the disagreements about whether the law is or is not consistent with the Constitution.

Defenders contend that the Constitution's commerce clause allows the national government to regulate a health care system that operates across state lines. In addition, they say, the Constitution's "necessary and proper" provision gives Congress the right to pass laws it needs to exercise its proper authority.

Opponents argue that the law includes financial penalties for people who do not buy at least some kind of health insurance and that the commerce clause does not authorize the government to regulate a non-action.

Immigration, another hot-button issue, already is before the Supreme Court. Last month, the court heard arguments about a 2007 Arizona law that allows the state to revoke business licenses of companies that knowingly hire undocumented immigrants.

Those challenging the law insist that the Constitution's 14th Amendment and subsequent Supreme Court decisions give the federal government sole authority over immigration matters. Proponents claim that the law regulates business practices within Arizona and even requires them to use a federal system to check potential employees. Thus, they say, the law is consistent with the Constitution.

Similar arguments are being made in support of Arizona's controversial 2010 law (also headed for the Supreme Court), which requires police to detain anyone they reasonably suspect of being in the state illegally and requires immigrants to carry status documents at all times.

Spirited debates about what is constitutional fill the air every day in courtrooms, law firms, legislators' offices, coffee shops, bars and barbershops all over the country, to say nothing of innumerable websites. Good-faith disagreements over constitutionality are as American as the Constitution itself.

What troubles us, however, are claims made by so-called originalists or textualists or literalists who insist that the key to determining constitutionality is knowing what the Constitution's framers meant when they wrote it.

By remarkable coincidence, these people insist that they have this precious knowledge.

Indeed, this was the unspoken subtext of the reading staged by the new Republican majority leadership of the House: "This is our Constitution, not yours. Only we know its eternal and unchanging truths, and you do not."

Thomas Jefferson — Founding Father, Framer, scholar, scientist, humanist (and slave owner) — held a different view. He foresaw disputes over constitutional meaning and understood that the country and the Constitution would have to adapt to survive over centuries.

"I am not an advocate for frequent changes in laws and constitutions," Jefferson wrote, "but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."

Contrary to the literalists' claims of supernatural exclusivity when it comes to immutable constitutional meaning, the Constitution is a document of unification, not exclusion, and its concerns are profoundly human. Its first words, after all, are "We the People," and again and again, its articles, sections and amendments guarantee rights to "the people," to "persons."

The Constitution expresses no preference for an ideology or a political party. No belief system, secular or sacred, enjoys greater deference than any other. The Constitution does not mention small government, big government or corporations.

The people of the United States established our Constitution to create a system that would make people's lives better, that would form "a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare and secure the Blessings of Liberty...."

These values are not the exclusive province of a Republican House majority or a Democratic administration. They do not belong only to militarists or pacifists, progressivists of the left, market absolutists of the right or self-styled centrists. A finance wizard pulling down multi-million-dollar bonuses has no more or less valid a claim to constitutionally guaranteed rights than a laid-off store clerk who can't afford health insurance.

Our stake in the Constitution, whatever the legal fine points of specific arguments over specific issues, is that it is ours. We, the people — all of us — are the keepers of the American flame.

REPRINTED FROM THE ST. LOUIS POST-DISPATCH

DISTRIBUTED BY CREATORS.COM