How To Use The Constitution

Dr. Tibor Machan

Many in the just seated House of Representatives have been clamoring for a return to the Constitution. This is what appears to underlie to planned challenge to Obama care, the massive piece of legislation that President Obama has been eager to make a part of the law of the land, legislation that contains provisions that toe many in the new House appear to be in violation of the U.S. Constitution. In particular, objections have been raised against forcing citizens to buy insurance, something that clearly goes against several principles associated with the American political tradition, such as freedom of contract, freedom of trade, etc. Some of these principles have found a way into the Constitution but it isn't always crystal clear just where in the Constitution they appear – the fifth, the fourth, the ninth, the first or which amendment or which ruling that contains precedents should constitutional watchdogs rely as they to issue the proclamation: "Unconstitutional."

The plain fact of the matter is that while the U.S. Constitution – specifically the Bill of Rights – contains some very laudable provisions, all of them require a fairly nuanced interpretation and application to contemporary issues (such as government coercing people buy health insurance). While for some citizens this is all a piece of cake, no problem at all, for others it isn't a slam dunk by a long shot. That's because these folks focus on the fact that the principles incorporated in the Bill of Rights are stated in terms that had a slightly different meaning back when the Constitution was ratified from how we understand them today.

Such development in the meaning of terms is often used as an excuse for evading constitutional principles but it could also be legitimate. Terms do change their meaning, more or less drastically or radically, even in the physical science – the term "atom" as used today doesn't mean what it had been used to mean a hundred years ago. The more people involved in the study of those matters for which such terms were coined come to know – the more information comes to light about the surrounding facts – the more likely some alteration of meaning is probable.

Now this doesn't mean the ridiculous idea that nothing is constant in the world, nothing stands still, nothing is stable and dependable, only that one needs to be sure what is and what isn't. Some constitutional scholarship would track just such developments – have the crucial terms of the constitution kept the meaning they had back at the time of ratification or did they change a bit or a lot? The changes wouldn't be arbitrary, with the result that anything goes – which is the result some of the avid skeptics about the Constitution would try to make us all believe. They hold to the doctrine originally ascribed to the ancient Greek philosopher Heraclitus who held that everything is always in flux – he is famously held to have said "You cannot step into the same river twice" because, well, the river is always changing. And if all of reality were like the river, we could never count on anything to be stable or solid, certainly not principles that are supposed to govern human community life.

But the American Founders and Framers disagreed and had spelled out some – few? – principles that do apply to human community life precisely because it is, after all, human communities that are at issue, not communities of ants or birds or cows. And these beings, human ones, are not all that changeable even over the time span of centuries. We know this from anthropology, archeology, history, philology, and other disciplines that study various aspects of humanity's past and make pretty good progress understanding them.

So there could well be certain invariable principles, ones that need to be considered in dealing with or governing people and once these make it into a constitution, that document could come in very handy in figuring out public policies and plans. But none of this would be happening automatically, not certainly from simply reading the Constitution, not by a long shot. Honest constitutional study and understanding would be needed. Only then would the imperative to pay heed to the Constitution come to something valuable, important.

The reason that objecting to Obama care would appear to be not just constitutionally misguided but a misguided way of dealing with citizens is that people are the kind of beings in the world who may not be pushed around by other people – they must have their sovereignty or rights to life and liberty well respected and protected. Unfortunately this idea is so often and widely violated around the globe and, of course, throughout human history, that it is difficult for anyone to be loyal to it.

Many people are bent on pushing other people around – always, of course, for lofty purposes – and so bringing up a constitutional objection to their doing so would be annoying for them, even undermine their philosophy of life and their aspirations to be influential in the world. So they will then commit to the philosophy of Heraclitus, a philosophy that gives them carte blanche about how to interpret the U.S. Constitution or any other document containing principles by which communities must be governed. It's a living document, you see, which can be taken to mean whatever one wants it to me, pragmatically and not according to common reason.

Yes, it is good to refer to the Constitution but it is even more important to keep in mind the underlying philosophical clashes and to make sure which side is right.