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Interpreting the Constitution

The Adams County Record of Council, Idaho

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Although history has labeled our first war against Great Britain as the American Revolutionary War, that may be a bit of a misnomer. While the foundational principles upon which our nation was built were revolutionary, the war was actually waged so that the colonies could secede from Great Britain.

In effect, there were two "revolutions" or objectives in our Declaration of Independence. The first objective, obviously, was secession and the formation of a new, independent country.

The second was the creation of a nation wherein the innate and ancient personal liberties of each citizen were inviolable. It is the latter objective that was truly revolutionary.

In addition to understanding the historical context surrounding the drafting of the Constitution, it is critical to understand the propositions for which it stands, as well as those for which it does not. There are some who suggest the Constitution is a "living" or "breathing" document, evolving over time. Such notions are nonsensical. The Constitution says what it says, and doesn't say what it doesn't say. Unfortunately, for over two centuries now, all three branches of our government have nibbled away (often gluttonously) at the original language and intent of the Constitution.

By continuously "interpreting" (or misinterpreting) the Constitution, often in a very political context, our courts have gradually distorted its meaning. As one of my nationally renowned constitutional law professors used to frequently remind us in law school, "the Constitution means whatever the hell one Supreme Court justice and four of his friends say it means."

Depending on which "team" has control of the Court at the time, the outcome of a case and the "meaning" of the Constitution can be quite different. The Constitution created the structure for what we know as the "federal" government. There is no historical doubt that it was carefully designed and drafted to create a national government limited in both power and scope. It spells out the limitations on that national government relative to the people and the states.

Today, however, it would be quite difficult to argue that many of those limitations have not been cast aside. Before addressing what it does say, let's consider a few words and phrases that clearly DO NOT appear anywhere in the Constitution or its amendments [Hold your breath here]: God, healthcare, marriage, immigration, abortion, education, food stamps, co-equal branches, separation of church and state, right to privacy, judicial review,-checks and balances, executive order, martial law, entitlements, Social Security, Medicare, and Medicaid. [Gasp here]

This is by no means an exhaustive list, but you get the picture. Interestingly, these terms are some of the "rights" and "Constitutional principles" most often cited by folks from all across the political spectrum.

Americans are frequently heard talking (or shouting) about our rights and freedoms. Do we really know and understand what they are? Have we considered where they come from? Are we at times a bit biased in deciding which ones are important? Who should get to decide which Constitutional rights are protected and which are ignored? Are we too quick to surrender them in exchange for a feeling of security? Which ones are worth dying for?

When I was teaching Constitutional Law, I would begin each semester by asking my students what freedom meant. I was often shocked (and usually disappointed) by some of their answers. Most seemed to think we somehow derived our freedom from the government. They, of course, could not have been more wrong.

In this country, the government derives its just powers only from the consent of the governed. As I explained to my students, we must start with the premise that "freedom" means we are naturally "free" to do and say whatever we please. Knowing that governments, by definition, are freedom-consuming creatures, our Founding Fathers sought to. design a system that would keep in check the appetite of our government and its ability to consume our innate freedoms.

Not surprisingly, the more we, as a nation, have strayed from the original language and intent of the Constitution, the more our natural freedoms have been devoured. Our Declaration of Independence speaks of rights that existed before, and independently of, the Constitution: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights Self-evident? One would certainly hope; some of them are explicitly described in the Bill of Rights. Unalienable Well, I suppose that's how the next fight started... Guest Opinion

The opinions expressed here by Mr. Smith do not necessarily reflect those of the Adams County Record

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Original Publication Date: August 26, 2015

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