“... One Supreme Court...”

Oct. 30, 2015

Any time members of Congress start discussing the constitutionality of something, as they have endlessly with President Obama’s executive orders and as they did again during the ninth investigation into the events that unfolded in Benghazi, the notion of “original intent” crops up.

The folks in Washington, having read a book, believe they are constitutional experts of such note that they can simply declare what is and is not constitutional. This is one of the truly bipartisan activities still in existence.

Democrats were quite certain the Constitution had been violated when George W. Bush was first elected president and absolutely positive the Citizens United decision was way out of bounds.

Republicans chime in on every abortion and gay rights decision because they know there’s nothing in the Constitution about either.

How ironic. We have a system in place that clearly assigns responsibility for determining such things. It isn’t Congress or the president or the kings and queens of talk radio. It’s the Supreme Court, the very body politicians like to tell us have authored something unconstitutional. In fact, the court is the only body actually allowed to determine the constututionality of anything. If they say it is, it is, and if they say it ain’t, it ain’t.

Original intent only matters if five justices agree. We should be eternally thankful the authors left themselves some wiggle room in the form of an amendment procedure to make needed changes; some of the original intent, clearly spelled out or glaringly omitted, was not so great.

There was no Bill of Rights, the first ten amendments, until 1791. The original intent, lauded by those calling themselves strict constitutional constructionists, had none of the five freedoms (speech, religion, press, petition the government, peaceable assembly) we now take for granted.

Slavery was not only perfectly legal under the original Constitution, a slave’s value was specifically spelled out — they would count as only three-fifth of a person for purposes of taxation and the apportionment of representatives.

That was clearly the original intent of the framers, since they took the trouble to include it right there in Article 1, Section 2. Slavery was not abolished until the 13th Amendment was ratified in 1865, long after the original authors and their intent were dead. Freed slaves and African-Americans who were never enslaved weren’t allowed to vote until the 15th Amendment was ratified in 1870.

The original intent of the Constitution was that we shouldn’t vote for our U.S. Senators, either. Senators were appointed by state legislatures until the 17th Amendment was ratified in 1913 (several Republican members of Congress have suggested we should return to the old system, an idea too horrifying to even consider).

Women, who were not mentioned at all in the original Constitution, weren’t even allowed to vote until the 19th Amendment was ratified in 1920. Half a century after former male slaves were allowed to vote, we decided to let all women vote. It seems utterly preposterous now but their suffrage is less than a century old.

Part of the genius of this document was the understanding that it could not be etched in stone and stay forever unchanged. They knew there were flaws. Thomas Jefferson, for example, knew some sort of bill of rights would need to be added even before the original document omitting them was signed. They understood time brings with it changes.

At the same time, they did not want changes to be made quickly or reactively, and to avoid the whims of political movements du jour. Generating the support of twothirds of both the House and Senate and then three-fourths of the states is more than difficult for a reason. That explains why we’ve only seen fit to make changes 27 times in 228 years.

Today we have presidential candidates promising to make all manner of changes on their first day in office, almost none of which are permitted under the Constitution about which they claim to know so much.

Repeal the Affordable Care Act? Re-criminalize same-sex marriage? Really? Repeal an Act of Congress or a Supreme Court decision with a few strokes of a pen? Not only practical impossibilities but illegal, to boot. And hardly consistent with the original intent of a separation of powers.

To be sure, Congress can sometimes alter legislation so it adheres to a Supreme Court ruling or they can offer a constitutional amendment.

And the court can make bad decisions that require changing in time but every decision they make is constitutional the second they make it. Their very existence is solely for interpreting the constitution and determining what is and what is not constitutional. And that was definitely the original intent of the framers. They said so in black and white in Article 3, Section 1. Presidential candidates and yappy Congresspersons should look it up.