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In the tradition of James Madison? |
The men who created the Constitution didn't gather at Philadelphia with the purpose of creating a constitution, actually. They were there to try to fix the
old constitution, the Articles of Confederation, that bound the United States together loosely but imperfectly. This was their commission:
"Resolved -- That in the opinion of Congress it is expedient, that on the second Monday of May next a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein, as shall, when agreed to in Congress, and confirmed by the States, render the federal Constitution adequate to the exigencies of government and the preservation of the Union."
But the men who gathered at Philadelphia didn't actually do the specific job they were given. Rather than fiddle around trying to fix the (apparently) unfixable Articles of Confederation, they more or less ripped up the document and started over with a blank piece of paper. And it's important to consider that act, very carefully, because what it means is this:
The Constitution was created because the Founders decided not to be "strict constructionists" about the rules they were given. Instead, they decided to act in the spirit of their commission, for the good of their country. The Constitution -- and the country -- we have is the result of their expansive reading of a plainspoken document.
Seems to me that this fact should have some bearing on how we decide to read the rules the Founders gave to us. Do we rely on a strict or originalist reading of the Constitution and bind ourselves very tightly to the vision of men who died more than two centuries ago? Or do we act in what we perceive to be the spirit of that document, allowing the government
some leeway in acting for the collective good? And if we do that, where can we say the line is drawn, where the government has gone beyond the bounds a free people should allow it? Tough questions, often treated simply. But the experience of the Founders suggests, really, that there isn't a simple answer.