For several years now, and
far more frequently over the past few weeks, I keep hearing some idiot on TV or
the radio complaining about things the federal government is doing being
"unconstitutional." I say "idiot" because it
betrays a gross misunderstanding of how our Constitution works and the
fundamentals of our government! So once and for all, let's get a few
First of all, I consider myself a Constitutionalist, although not as some refer to themselves, a "strict constructionist." If I was, then that would mean I'd want to return to the Constitution exactly as it was written; where women had no vote and blacks had no freedom. No, I'm a Constitutionalist in the sense that I see it as the bedrock of all of our laws. I do, in fact, see it as a "living document" -- not that it's amenable to change, but that we are a living people, our laws constantly evolve and the Constitution must evolve with them. Some conservatives balk at this idea, and they have a point: the one constant over all of the years since our Constitution was ratified, and indeed since there's been recorded history, is that human nature doesn't change. Our basic needs, desires, impulses and rights are the same today as they've been since humans first appeared on the planet.
Our Constitution recognizes this within the first ten amendments, which we know as the Bill of Rights. As Justice Robert Jackson wrote in 1943: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us." He further wrote: "The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."
Recognizing these rights and protecting them from both government and the whims of public opinion are where I'm "strict." I also believe that this isn't where the controversy lies. The biggest noise being made today by the anti-government crowd is that the federal government should be limited only to those specifically enumerated functions spelled-out in our Constitution. To do anything else, they say, is a violation of same. And this, my friends, is HOGWASH.
Let me explain"
There is a tenet of law that states; if something is not specifically prohibited by statute, then it is not illegal. In short, no matter how vile, repugnant or offensive something might be, if there is no law against it, then it is not only legal, but new laws cannot be written to prosecute the offensive behavior retroactively. This was illustrated in a small town I'd heard about on PBS. A long, long time ago, a man and his wife moved in and lived very quietly, without much interaction with their neighbors or community, until the woman went to the local hospital one day to deliver her baby. As they began to learn about the couple, it came out that the man wasn't her husband, but her father! When word got out, police and city officials were outraged! Yet at that time, in that city and in that state, there were no laws preventing two consenting adults from having a sexual relationship no matter what their other relationship might be. (The woman was in her mid-20s, and told officials that their relationship had begun after her 21st birthday and was consensual.) Needless to say, there was a law quickly enacted.
Similarly, there are indeed the enumerated duties and functions of government laid out in the Constitution, but there are things that the government now does where the document is silent. As in our example above, this is NOT a violation if there is NO SPECIFIC PROHIBITION AGAINST IT!
Now, some Constitutional scholars (or, more often people with political agendas) point to the Tenth Amendment to the Constitution which states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." They say that this indicates that the government may therefore do nothing beyond what is detailed within the Constitution and that anything else may only be done by the States (as in "states rights") or by "We The People." Ah there it is! Think about those last few words: ""or to the people."
Since we are a self-governing people; literally a government "of the people, by the people, for the people," then it stands to reason that there will be things that We The People want our government to do that our founding fathers could never have imagined! The first thing I think of, because I'm such a science nerd, is the Apollo moon program of the "60s and "70s. Nowhere in the Constitution is anything like NASA enumerated. So was NASA unconstitutional? Or did We The People choose, along with then president John F. Kennedy, to go to the moon? And how might The People accomplish such a task?