The mind boggling thing about our vicious national division is that people on both sides claim total devotion to our national Constitution, but that nearly unanimous (supposed) devotion has not, so far, led us to national unity. The fact that this nation of 350 million people can be split because we can't agree about what a six page document means is, indeed, mind boggling and hard to understand. In trying to understand it, we are driven to the conclusion that one side, or the other (or likely both) is not reading our founding document in an honest way.
By identifying one or two of the mistakes folks make in their reading of it, we might hope to move toward uniting America. Further, by conducting an honest examination of our misuse of our founding document, we will undoubtedly help educate ourselves, as a people, in how to properly embrace and use the Constitution we all claim to love.
One of the biggest issues we disagree with each other about is the functions and activities of the federal government. Many argue that the federal government has, over the decades, taken (usurped is the word) many of the powers and responsibilities of government from our state and local governments. Things like education, medical care, welfare, elderly care, drug laws, farm policy, and even such sacred cows as national forests and parks don't seem to have any proper constitutional basis to exist as federal agencies.
Folks on that side of the debate will point to the Tenth Amendment, with it's language that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This means that the federal government is limited to engaging in things the Constitution empowers it to engage in. Since those listed issues, and many other powers now exercised by the federal government, were never properly delegated to it (which would require a new constitutional amendment to affect), those programs are unconstitutional. It is assumed in their argument that our Constitution was always intended to give us a limited federal government.
Those on the other side of this argument will bring up what they call the “supremacy clause” which is included in Article VI in the main body of the Constitution. It reads, in the second paragraph, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land, and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
Those folks who are in favor of the federal government involving itself in anything it pleases point to this paragraph and say, “See, there it is, federal law is supreme over state law.” This is one of the misreadings that we set out to identify, so let's take a closer look at their position. Theirs is a two fold misreading of the Constitution, based on ignoring one important word. That word is “Pursuance.”
Let's introduce an analogy to explain. Pretend you are watching an automobile chase scene, cops pursuing robbers, in a movie or real life. When the criminals, hoping to elude capture, take a right turn at an intersection, and then the police cars come along and take a left turn at the same intersection, would you say the police cars are still pursuing the criminals? No, of course not.
The word “pursuance” means going in the same direction, or in the sense of a legal meaning, going in an agreeing direction, or even being in compliance with. In other words, when it is used, in Article VI, the founders intended that it limit the actions of the federal government to those things the Constitution empowered it to be involved in. They intended to found a constitutionally limited republic, which is how we should understand it. What's more, they capitalized those words which they intended to carry precise, and profound meaning, such as Law, and State. This faithful to the original quote shows that they intended “Pursuance” to carry extra weight when we interpret the document.
Those who still want the Constitution to say what it doesn't say will likely continue to gloss over that one word,(it IS slightly difficult to understand) and still argue for an unlimited federal government. They will usually then assert that since Article VI is in the main body, and the Tenth Amendment is merely an amendment, it should take precedence.
They could not be more mistaken. Here I must insert some special knowledge, gained by independent research. Years ago, while investigating the wording of the First Amendment, I was reading through the “Congressional Record” from September of 1789. (Very interesting reading in general: there are found the debates in Congress after Madison introduced the “Bill of Rights“).
I stumbled upon the first reaction to the idea of the Tenth Amendment. One of the members objected that the subject of limiting the federal government was already covered in Article VI, so why was there a need for another such limitation? Others responded that the language in Article VI was too sparse, and that some folks might later misread it, and thus we needed further clarification. That, as subsequent policies proved, was a reasonable concern.
The Tenth Amendment was ultimately adopted, so we know how that debate ended. We also know that the 10th wasn't intended to contradict Article VI, but rather to clarify it. And the 10th came later, which would actually give it precedence if there WAS a conflict between the two.
That approach, simply ensuring we take every word seriously, ought to settle much of the division around our Constitution, providing us a way to move froward with it together. Sadly, that is not likely to happen, because the fall back position of those who want a powerful, unlimited federal government is to then assert that the Constitution is a “living document.” By that term they mean that the Constitution means whatever the Supreme Court says it means. So since the Supreme Court has never ruled, at least since 1937, that the Tenth Amendment limits the range of federal powers, then those limitations, although actually written in the document, no longer apply.
This issue, of who interprets the Constitution, has been around since at least the time of Thomas Jefferson. Since that power largely has to fall, in the interest of orderly government, to the Supreme Court, the question becomes how far we should let them drift from the original meaning in their reading of it.
Abraham Lincoln, who had been incensed by the Court's ruling in the Dred Scott decision, said this at his First inauguration, in front of Chief Justice Taney who had written that odious and racist decision.
”The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”
With that quote in mind, let's conclude with two key points about how we, the people, should embrace our Constitution, and how that approach might lead us back to unity. While we must usually accept the constitutional interpretations of the Supreme Court, we should always remember that they can and do get it wrong on occasion.
So first and foremost, we should familiarize ourselves with the Constitution, understanding what it actually means, and then behold how far we have strayed from it (To our great peril). Getting back to an honest use of it will take a great deal of effort, but we should be grateful that somehow, miraculously, such a revival is still within the realm of possibility. With that understanding, and the conviction that we should return to a strict originalist reading as much and as soon as possible, we as a people will be able to put effective pressure on the Court to read it as honestly as possible.
Secondly, for all of us who have to take an oath to the Constitution, from enlisted military personnel, to local and state officials, to presidents, and senators: ask yourself one question. Are you taking an oath to defend the Constitution, or are you taking an oath to defend the Supreme Court? If you want to pretend that they are the same thing, then you should read some more history, from Dred Scott, to Plessey v Ferguson, to as recently as the Dobbs decision overturning Roe v Wade. The Supreme Court has often shown itself to be imperfect. The Supreme Court of the United States, and the Constitution of the United States, are not synonymous.
So we must present ourselves with one last proposition. Since we all, as citizens, and as oath taking officials in particular, are actually the first and last line of defense of the Constitution, something almost all of us profess a reverence for; How can we, with any degree of integrity take an oath to defend it if we never even read it and certainly don't understand it. Or worse yet, if we are eager to allow it to be clownishly twisted into incoherence by the dubious doctrine that it is a “living “ document?
In other words, isn't it high time, and way past time, that we once again studied it for ourselves and thereby started overcoming the mediocre education we have been subjected to about it for decades? By doing this we can start using our sincere and mutual love of our Constitution to regain our unity and rebuild our nation. That will undoubtedly work better than what we've been doing, which is throwing it at each other as a meaningless, infuriating insult.