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Founders’ Intent, Indeed

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Charles Krauthammer’s recent opinion column in the Washington Post, Constitutionalism, calls “for a more restrictive vision of government more consistent with the Founders’ intent . . . that legal interpretation be bound by the text of the Constitution as understood by those who wrote it and their contemporaries.”

“The Founders’ intent,” indeed. What unmitigated codswallop.

Krauthammer concludes, “Constitutionalism as a guiding political tendency” has such “wide appeal and philosophical depth [to] make it a promising first step to a conservative future.” If that is so, then why do the Republicans want to rewrite the Constitution?

Rep. Rob Bishop (R-Utah), a member of the House GOP’s majority transition committee, has introduced a constitutional amendment that would allow states to nullify federal laws with which they disagree. Called The Repeal Amendment, it already has legs. In his published statement, the new House Majority Leader Eric Cantor (R-VA) hopped on the new bandwagon in favor of the amendment. “In order to return America to opportunity, responsibility, and success, we must reverse course and the Repeal Amendment is a step in that direction.” So much for progress, “that direction” is backwards.

Before I get off track, let’s start with the some basics about the Constitution, perhaps even the one that Charles Krauthammer refers to – the original 18th Century one. It is a document that has been amended 17 times since its original ratification, December 15, 1791.

Founders' intentAll through the summer of 1787, delegates drafted, debated, and redrafted the articles of the new Constitution in closed sessions to replace the existing Articles of Confederation. The primary issues included how much power to allow the central government, how many representatives to allow each state in Congress, and how those representatives should be elected, whether directly or by state legislators.

39 of the 55 framers signed off on the four pages of parchment they had produced and on September 17, 1787, the Constitutional Convention in Philadelphia adopted their work. The first Congress began work in New York City on March 4, 1789. The House of Representatives achieved a quorum and elected its first officers on April 1st, followed by the Senate 5 days later. President Washington’s inauguration took place on April 30th. The rest, as they say, is history.

The Founders, all of them men and some of them slave owners, had plenty of experience with home rule. They had endured the ravages of a revolution that put their new government in deep debt. Their country was bounded by Canada, the Mississippi River, Florida and the Atlantic Ocean. To presume to understand their intent with respect to government is suspect in the least, if not hypocritical in the extreme, except for one thing: amending the Constitution. And they made that difficult. Amending: Article V – Amendment spells out the process.

For the record, the President is not involved in the amendment process in any way. Incidentally, two-thirds of both houses must pass an amendment, and two-thirds of both houses are required to overturn a presidential veto. But, I digress.

Even if an amendment gets through Congress, it is not guaranteed to be ratified and then expires, like the Equal Rights Amendment did in 1982. The ERA intended to place into law the equality of women and men. It was sent to the states in March, 1972. But it failed to be ratified even though Congress extended the original seven year deadline to ten years.

The idea of Constitutionalism, as conservative columnist Krauthammer suggests, seems inconsistent with the Republican agenda and misses the point. It has nothing to do with the intent of the Founders, as stated. It is obfuscation. The real objective of any proposed Republican amendment is to attack the 14th Amendment, which the Repeal Act would do.

Before the 14th Amendment, the states could ignore the Bill of Rights. The truth is that the interpretation of the Constitution is what the Republicans are after. If they can succeed at eliminating the 14th, they can revive their crusade to overturn rulings in cases like Brown v Board and Roe v Wade, as I have written. Fortunately, the “Founders intent” was to make amending the Constitution something that the new Republican House majority will have little chance of achieving.

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About Tommy Mack

Tommy Mack began his career in broadcasting and is a US Army graduate of the Defense Information School. He worked in Army Public and Command Information and earned a BS in Liberal Studies from the State University of New York, Albany. A marketing communications executive, Tommy became a business management consultant for a major international consulting company and its affiliates before establishing Tommy Mack Organization, a business consulting practice specializing in organization and communications management. A professional writer and blogger, he writes about politics, business, and culture.
  • Clavos

    It is a wonder why there are not more Jareds.

    There are and there will be many more…

  • It’s facile to say someone should have just locked Loughner away. Of course we feel that way now. But before Saturday he was just another strange, obnoxious guy. There are many thousands of them, and they are not all psychotics or murderers.

    Locking up someone before they commit the crime — isn’t that the tricky premise of that great movie “Minority Report”?

  • An interesting point, Clavos, is that in Florida there is the Baker Act, under which people can be committed because of their behavior and whacked with unhealthy doses of Thorazine.

    And actually, Cindy, there a lot more “Jareds.” Some attempt to jump from high places, like bridges and tie up traffic.

    Public opinion is that the jumpers should be pushed, or worse. Shooters have protection under our pesky Constitution.

  • ‘Just’ societies don’t create crazy people who need to be locked up.

    Let me translate my point:

    In cultures where bonds between people are strong informal social control is all that is required to affect (right affect not effect?) behavior. Even in large groups that would hold up.

    In this society, people are conditioned to compete and compare, to take advantage of others for personal gain. This is a culture of loneliness in a crowd. It is not a healthy or just culture. What justice is there in allowing the elderly to develop delirium and dementia while locked away, while children are locked into virtual reality, blowing people away in violent games.

    It is a wonder why there are not more Jareds. The culture creates them because of what it is. They do not spring from nothing. They are created out of the fiber of what this society is.

  • Baronius,

    Forgive me if you are not a Libertarian. I thought you said you were. And I think you also support the military. If I am wrong, I retract.

    Let’s say that when people who are known to be dangers to themselves and others are running around free to kill, that’s not far enough. When people are being rounded up based on their political beliefs, that’s too far.

    That is fine. Then we can still still lock up most Republicans. It is not a political belief to support war. It is an act that is state sanctioned murder*. That was my point. We can also lock up plenty of Democrats. We can lock up Obama and we could have locked up GWB, Cheney, et al. They all are known to be dangers to…others [and] are running around free to kill [or direct others to do so].

    *I regularly hear Libertarians criticize the federal gov’t, except for some reason when it is murdering people in wars, then the federal gov’t is defended.

  • Clavos

    I’m sure a constitutionally adequate system of due process could be developed (even by Democrats) to ensure that the loonies’ rights are protected…

  • Oh, by the way, does the expression “…nor be deprived of life, liberty, or property, without due process of law” ring any bells? [5th Amendment]

    What would be the “due process” to “forcibly commit/medicate the mentally ill”? That sounds like a a deprivation of liberty.

  • El Bicho

    “It seems to me that the ability to forcibly commit/medicate the mentally ill would have also prevented this tragedy.”

    Would that fall under some sort of government healthcare plan? And where’s the money going to come from for that program?

  • Well, I have a problem with the notion of “normalcy,” Baronius. I’m aware of the fact that your idea sounds good on surface – for there certainly are exceptions, series killers, psychopaths, what have you – but once we move beyond the pale, it’s a form of social control. I’m not going to burden you with Foucault’s studies on prisons and the practice of psychiatry, but suffice to say the idea of control figures in as the prominent idea.

    I presume, of course, that your thoughts on the subject are precipitated by the recent event. Well, I’m far from certain that the perpetrator qualifies. I’m aware of the fact that until now, that’s the prevalent opinion,and that it serves the powers that be to call this an act of insanity.

    Well, I’d like to reserve my judgment. As I spoke to Dreadful at length on another thread, grievances against the government aren’t exactly unjustifiable or lacking in rationale. I may disagree with the method but I understand the cause. People may be moved by passion or sheer hatred, common human emotions, too, even to unthinkable heights. That doesn’t necessarily make them insane.

  • Baronius

    Roger, I meant what I said. Just because the Soviets and others imprisoned people under the pretext of psychiatric care doesn’t mean that a just, non-totalitarian society can’t involuntarily commit the seriously ill.

  • taking other people …

  • Will do, but why should he get away with inauthentic speech? He’s just as provocative as anyone, yet dares calling other people to task for doing the same. Epitome of disingenuity.

    You don’t do it, which is why I respect you. But as to his online persona … but I had better stop while I’m ahead.

  • Clavos

    Chill, Rog…

  • Well, did you mean it, Baronius or did you not? If you didn’t, then you’re off base calling Cindy facetious.

  • Baronius

    Uninteresting. Roger attacks a strawman to provoke a response.

  • We already have such laws in effect. They lock a person up for observation – 72 hours for starters.

  • Interesting. Baronius turns totalitarian.

  • Baronius

    You complain that I don’t understand the distinctions among the left, and you label me a libertarian? and say that libertarians are war-mongers? Hyeesh.

    As for locking up the mentally ill, there’s clearly a point that’s too far, and not far enough. Let’s say that when people who are known to be dangers to themselves and others are running around free to kill, that’s not far enough. When people are being rounded up based on their political beliefs, that’s too far.

  • but based on this and many other comments you’ve made, I think you’d gladly wear the jackboot if given the opportunity

    Let me say why that is. In my view I am a hostage in a world that has been filled with sickness by people. Chock-filled. I both love humanity and hate people, hate-humanity and love people.

    Every single time I see the results of the horrors and sickness and sadness people create, I get angry. Anger is a defense against sorrow. It is easier to be snide than to be depressed.

    Just my lot to work through. We’ve all got something. This keeps me busy. And I realize anger (of my sort) is rarely productive.

  • Baronius,

    I’m only being facetious to a degree. I am usually making an analogy. You pretty much never do get my analogies–probably due to my lack of aptitude.

    Allow me to spell out my point:


    So do you see my analogy? You would not want ME deciding, ow would you? Then why should I want someone YOU chose to decide?

    How very unlibertarian of you.

    (Of course, Libertarians do support the gov’t when it is taking away the rights of anyone they deem worthy of that and when the gov’t is running around the world treating others to its shock and awe campaigns. Then they are all misty-eyed and patriotic-like about the gov’t.)

  • Baronius

    Cindy, I think you think you’re being facetious, but based on this and many other comments you’ve made, I think you’d gladly wear the jackboot if given the opportunity.

  • I agree Baronius! I think Republicans are mentally ill…please the pills and the straight-jackets!

  • Baronius

    It seems to me that the ability to forcibly commit/medicate the mentally ill would have also prevented this tragedy.

  • STM

    Something similar, with more rights. One of ’em might be the right to go somewhere without lunatics taking potshotsb at you because they were able to walk into guns ‘r’ us and get two guns for the price of one plus a free bonus box of armour-piercing ammo.

    Ok, that’s never going to happen, but you might at least get some commonsense controls, which is all you really need, and accept that an amendment designed to cover about 200,000 muzzle loading weapons essentially to protect against the British probably ought to be changed somewhat in a modern America of 300 million guns where you really don’t need to have an uzi in the glovebox or an AK in the kitchen cupboard.

    The right to get sick without going bankrupt wouldn’t be a bad right, either.

  • Baronius

    Non-leading question: what does anyone think we’d come up with if we did scrap the Constitution and try again?

  • STM

    And get rid of that pesky dangling participle in the 2nd amemdment.

  • STM

    Tear the whole bloody thing up and start again.

  • I stand corrected, sir, about the Court repealing law as I stated it. I confused “law” with “amendment.” To repeal or abridge a Constitutional provision requires an amendment, such as the 21st Amendment repealing the 18th.

    The rest is legislative, not necessarily Congressional, when a new law is passed that annuls a previous law. But, such changes end up in court anyway.

  • Baronius

    “But it doesn’t work that way.”

    Well, that’s the point of amending the Constitution, right? If you don’t like the way it works, change it.

    “If you don’t like a law, you take it to court — the Supreme Court. Repealing laws is their job, not the job of the states.”

    No it’s not. They don’t repeal laws, Congress does (usually with the presidential signature). The Supreme Court may strike down laws.

  • Baronius, regarding the “subject to the jurisdiction thereof” of the 14th Amendment, I agree with you. That is precisely where the Supreme Court is involved and not by overwhelming majorities in the court’s opinions.

    The “amenders” were trying to put the Union back together, not looking into the future of “privacy” or of immigration. But, the 14th Amendment is profound in the Court’s interpretation of a lot of case law decisions that effect society and, as I said, that is the Courts job to decide, not the States.

  • For those who just tuned in, here is the test under discussion.

    “Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”

    That is pretty badly written. Looked at objectively, the Repeal Amendment says that if the legislatures of 34 States vote together to repeal a federal law, they may repeal it. But it doesn’t work that way. If you don’t like a law, you take it to court — the Supreme Court. Repealing laws is their job, not the job of the states.

    Here is what the Constitution says.

    Article III Section 1: “The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” And, Article III Section 2: “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.”

    As I said, the new Republican majority can beat its chest and proclaim all of the populist bills it wants, but getting a Constitutional amendment out of it is a lot more arduous task in reality than it is in their mythological Constitutionalism.


  • Baronius

    Regarding the 14th Amendment, there’s a lot of bluster against it with regard to “birthright citizenship”, but no one’s talking about weakening the amendment to alter the Roe or Brown decisions. I think you could make a good argument that the current interpretation of the amendment is flawed in its understanding of “subject to the jurisdiction thereof”, precisely because the authors didn’t explain it. There’s nothing specific on which the current interpretation is based. But that being said, on the issue of immigration, politicians would rather get attention while not resolving it, than avoid attention while resolving it. If they were attempting to rewrite or reinterpret the 14th Amendment they’d be blowing horns and throwing themselves parades.

  • Baronius

    Tommy, the Founders’ intent applies to what the Founders wrote. The amenders’ intent applies to what the amenders wrote. No one’s talking about returning to the Founders’ intent in matters of slavery or anything else that’s been amended. We’re talking about referring back to the Founders when an issue comes up upon which they haven’t been superceded.

    Are Constitutional amendments laws? Yes and no. A law can’t overrule the Constitution. If this amendment is approved, states wouldn’t have the power to get together and decide that the Supreme Court should be abolished, for example. The founding document can’t be iterative.

  • The Founders had all died by the 1865 when the 13th Amendment abolished slavery, which had only been the intent of a few of them.

    The Republican interest in rewriting or eliminating the 14th Amendment has already been articulated by its leadership, specifically by such prominent Republicans as Senators Lindsey Graham (SC), Jon Kyl (AZ), and Mitch McConnell (KY). Their reason is “Birthright Citizenship”, to which they object.

    Among the purposes of the 14th Amendment was to make sure that the states could not legislate against it.

    “No state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States… [or] deprive any person of life, liberty, or property without due process of law, [or] deny to any person within its jurisdiction the equal protection of the laws.”

    My argument is that the 13th Amendment [Ratified 12/6/1865], 14th Amendment [Ratified 7/9/1868], and 15th Amendment [Race No Bar to Vote, Ratified 2/3/1870] are far from the Founders intent. The Repeal Act is a feeble attempt to end-sweep the 14th Amendment and, oh by the way, Constitutional Amendments are laws.


  • It would allow states to repeal laws, not amendments.

    That depends how you interpret the phrase “provision of law”, Baronius. Does it refer only to statutes, or to the law in general? If the latter, that would encompass not only the Constitution but also case law.

    But you’re right, I can’t see how this proposed (and sloppily-written, BTW) amendment is targeting the 14th in particular.

  • Clavos

    The Federalist Papers, authored by three of the FFs (James Madison, Alexander Hamilton and John Jay, all writing under the pseudonym of Publius) present a good insight. Ben Franklin, another prominent FF, was a prolific writer — there can be no doubt about his intentions. George Washington has been studied, analyzed and written about ever since by historians of every stripe — no hidden secrets there, either. Thomas Paine was another prolific writer (of Common Sense). The rest, such important and influential historic figures as the Adams’s (John and Samuel), Patrick Henry, John Hancock and others, have also been studied, analyzed and written about (in addition to their own writings) in prodigious quantities.

    We Americans know (or at least should know) the intent of the FFs better than most other historical figures.

    Just sayin’

  • Baronius

    Tommy – This article doesn’t seem to be well thought-out.

    – You say that the Republicans want to rewrite the Constitution. It’s fairer to say that some Republicans want to add one amendment.
    – You say that it’s suspect to presume to know the Founders’ intent. Why? They wrote quite a bit about it. And if we don’t follow their intent, what do we follow? Who’s to say what each generation’s interpretation will be? If the meaning isn’t grounded in something, we may as well switch to a non-constitutional form of government.
    – You say that constitutionalism seems inconsistent with the Republican angenda. In what way?
    – You say that the real target is the 14th Amendment. But how would this amendment negate the 14th? It would allow states to repeal laws, not amendments. And on what basis do you make the claim about the Republicans’ intention? They’ve been quite clear about wanting to reduce the scope of government, which this amendment could potentially do, so why look for an ulterior motive?