I am a Constitutional Scholar. I have read and studied the Constitution and its history all my life. I am not a scholar of Constitutional Law. By that I mean I have not studied all the rulings on laws as they relate to the Constitution. At one time I considered going back to school to get a joint law degree and PhD in History, with my dissertation topic being how the Supreme Court ruled in violation of the Constitution over the years.
The main reason I wanted to write about the relationship between society, government, and politics is that they have now become so intertwined. And it was never the intent of the Founding Fathers for things to become so. The people who came to the American Colonies were trying to escape environments where the government, both monarch and governmental elites, contolled everything in society. In particular, Europe’s society operated in a very stratified caste system where you could not move from one to another. On occasion, someone might move up a single level, but there was no way a son of a pauper could become a landed baron.
The colonists were a pretty diverse group in their day, and settled in a colony of like-minded folk. Each of our thirteen original states reflected this social, religious, or cultural focus. There were, to be sure, some gentry in the mix, but they came seeking to expand their fortunes, or attempt to move up the European social ladder by some service to the King. Many were simply men who, by birth, could not inherit any family property. In the colonies, they could acquire land and wealth. None of these things were possible in the Old World. There society was controlled by the existing political structure. Even today, Europe lives by those rules, although they are far less pernicious.
Our Founding Fathers were not trying to establish a government to lift up others less fortunate than themselves. They wanted a government which would not interfere with someone’s determination to make something of himself. They were, themselves, the less fortunate of Europe, and wanted freedom from class and governmental interference in their affairs.
Government, as they viewed it, was to be a structure for protecting the population from outside forces, and for regulating interaction between the states as a group and outside agencies or nations. Period. Section 8 of the Constitution outlines precisely what powers Congress was to have:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and Post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
That is the limit of Congress’s powers.
Politics and government are not the same, although most of us view the terms as almost interchangeable. Politics is first cousin to diplomacy. Both involve deceit, negotiation, coercion, and compromise. None of those things have any place in good government. Government must follow principles, and not whims nor desires for power. For the United States, those principles are our Constitution. Politicians do not want to be hindered by principles, and neither do their most vocal constituents. And that is where the drive for governmental control of society comes from.
European governments still control society. They have Ministers of Culture, and other such agencies which determine what is good for the people. They have class structures, and the political class hand down their positions as inheritance as they have for centuries. Our government was established to be exactly the opposite, and serve the people rather than the other way around.
Yet we have a problem with our Constitution. It doesn’t allow the government to do some things we want it to do. Today’s answer to that little problem is to ignore it in favor of helping others. An ignoble idea. Because once the government gets what it wants, it wants more. And that is precisely what our Constitution was written for–to prohibit the government from doing more than it should. Every time the Constitution is violated under the guise of helping someone, somebody else is hurt. Because the role of government is to not help anyone without helping everyone. That is what “the general welfare” means.
I am still mulling my ideas on this issue. There is no easy answer. Libertarians claim to be strict Constitutionalists, yet want open borders. Democrats push for more socialization in direct conflict with the Constitution, and use the court system to advantage in getting the interpretation they desire (“interpret” does not appear in the Constitution). Republicans come closest in philosophy with the tenets of the Constitution, but bend as well to please certain constituencies.
Any or all of these political groups could have the Constitution read the way they want with a simple tool provided for, and used twenty-seven times: Amendment. But an Amendment requires approval by society, not just politicians. The hurdle seems too large because society doesn’t bend as readily as politics. The Equal Rights Amendment failed because it was unnecessary. The concepts already existed in the Constitution. Society understood that, even though politicians and advocacy groups didn’t. Its process, however, highlighted issues society needed to deal with, and we did. Although I’m sure not to the total satisfaction of everyone.
An Amendment to define marriage isn’t needed either. Marriage is not a governmental issue. Well, government has actually made it a governmental issue, but that is beyond the Federal Constitution’s authority. Anything not covered in our Constitution, in the governmental sense, falls back to the States. If a State wishes to restrict marriage in some way, I would have to say they have the authority. That assumes their State Constitution allows such interference. Unfortunately, because government has involved itself in a social and cultural issue, it must get more involved to attenuate the problems it caused. It cannot eliminate them.
I have already written about this issue several times here, here, and here. But I’ve done a little more research since then. I am not against gay marriage. I am not against civil unions. Check the links.
In a pamphlet available online, Pastor Matt Trewhella writes…
George Washington was married without a marriage license. So, how did we come to this place in America where marriage licenses are issued?
Historically, all the states in America had laws outlawing the marriage of blacks and whites. In the mid-1800
