While giving lip service to the U.S. Constitution, some try to undermine it. One way has been to dismiss it as being out of date. Even Presidents have said things like, “It (the Constitution’s limited powers concept) can be applied… only in a primitive community…” or, “The old theory of the sovereignty of the States has lost its vitality…” or “(It was written for) the horse-and-buggy age…”
Did the Founders write the Constitution to apply to the society of the future?
The future that the Founders were worried about was immediate – the takeover of the country by the federal government and the tyranny that an all-powerful government could impose. They were worried about the forces in the new nation that wanted to take away our God-given freedoms. And they were worried about the temptation of people in power to want ever more power.
To forestall this, the Founders put limits on what powers the federal government could have and reserved all other powers for the States and for the people individually. The Founders believed that nearly all interests varied from state to state and that, being closer to their particular interests, each State and it’s people were better prepared to understand and deal with them than a remote and self-serving federal government.
For those few interests that the Founders knew to be national, such as interstate commerce, they defined federal government powers over them in simple, direct terms. Still, they knew that such powers would have to be put into practice at a level of detail they didn’t intend the Constitution to have.
Continuing with the interstate commerce example, the Constitution gives Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…” That’s it. No powers in interstate commerce are mentioned for the President or for the Courts, just Congress.
Reading the interstate commerce clause, did the Founders intend for members of Congress to stand at state borders and observe the movement of goods across the lines themselves? Of course not. The Founders meant for Congress to give others the authority to put the clause into practice. So, the Founders meant for the Constitution to be interpreted. And, that’s where things get sticky.
The need for interpretation opens the door for assumption of greater power. FDR said, “The United States Constitution has proved itself the most marvelously elastic compilation of rules of government ever written.” He thought the Constitution ought to let him do whatever he wanted. But, an elastic band can stretch only so far and he went too far and was denied (until he could appoint new Supreme Court Justices).
This brings us back to limited powers, simply and directly defined. The Founders put limits on the regulation of interstate commerce when it used the phrase, “…among the several States.” Meaning that Congress could not get into commerce within a state, only between states.
But, power-hungry forces have not been deterred. They have stretched the elastic little by little until Congress has become fully engaged in commerce within the states, authorized by the Supreme Court. Are there limits to this power? It appears that the Supreme Court has begun to recognize the need to reduce these powers in both the Lopez and Obamacare decisions. But, those are subjects for another day.
Only one other question needs to be answered: “Are there interests today that cannot be dealt with by current Constitutional provisions or by States or individuals?”
What has been demonstrated is that the Constitution is not out of date. It applies equally to the 21st Century as it did to the 18th because it trusts the people to govern themselves. But, there will always be the power-hungry, trying to find a way around or through it. If the Founders were alive today, they would say, “See? We told you so.” It is up to us to stay vigilant as the Founders would have wanted.