One has to wonder
whether the Founding Fathers believed the Constitution should be applied or
interpreted with respect to the management of the country.
Human nature is such
that man always tries to “see beyond” what is written or even what the facts
may be in his insatiable thirst for growth and expansion. It’s considered a part of life and ambition
plays a strong part in a politician’s life.
Reading and
contemplating what the Framers wrote and the view they had of the individuals
they expected to serve in the various government functions, it appears they
anticipated that the large majority of decisions would result from applying the
principles they had so carefully crafted into the Constitution.
As written, each of
the three branches, executive, legislative and judicial, had reasonably well
defined areas of responsibility and authority.
Only the legislature could propose laws.
The executive was charged with seeing that properly executed laws were adhered
to. The judiciary was to apply the Constitution
whenever a question arose as to the constitutionality of a law. Note that the word was “apply”, not
interpret.
To interpret
anything is to inject an individual’s idea of what the point is rather than
what the facts might be. In the past 100
years, we have seen more “interpretation” than “application” of the
constitution with respect to the operation of the federal government.
Today we have
Supreme Court Justices (Ginsburg in particular, Breyer in part) openly stating
that we should incorporate in our constitutional “interpretation” what exists
in international law or laws in other countries. That is, to a certain extent, a total
disregard for the oath taken upon assuming the position of a Supreme Court
Justice (to preserve, protect and defend).
The softest name for the individuals who do so is hypocrite but perhaps
more pointed, “intellectually dishonest”.
For those who wish
to point to the Declaration of Independence and its clause, “a decent respect
to the opinions of mankind requires that they should declare the causes which
impel them to the separation”, please note that it does not say “subject our
decision or incorporate their thinking” in the action being taken. When Jefferson wrote that part, it seems
obvious that he was “selling” the point of view that the colonies were
justified in their action since the King sought “the establishment of an
absolute Tyranny over these States.”
If we apply the Constitution to a given
situation, the question of “compliance” becomes clearer. It is not clouded by the introduction of
extraneous ideas or a personal desire or interpretation of the situation at
hand. It rules out the possibility of
future deviations from the intended purpose of that part of the document being
applied. As an example, consider the
“separation of church and state” so evident in today’s discussions. Nowhere in the document do such words exist
yet they have been incorporated by interpreting
the actual words. Amendment I states:
”Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof . . .”
By interpretation,
we are no longer allowed to “worship openly”, start a school game on the
playing field with a prayer, utter a word of approval of God in public
discourse, or in some situations speak harshly since it might be classified as
“hate speech”. Hardly an accurate application of what was written. On the very face of it, all this is a
violation of the First Amendment’s opening sentence: “Congress shall make no
law restricting freedom of speech, etc. . . .”
The Constitution
should be applied while the laws
enacted by Congress should be interpreted
to determine compliance with the Constitution.
While imagination is
a wonderful thing, it deserves no part in applying the Constitution.
That’s my view. What’s yours?
Reach me at constitionviews.com © Copyright 2012 Hillard W. Welch
