The Living Constitution

Conservative Republicans condemn the Affordable Care Act; notwithstanding similar proposals have been proposed by Republicans in the past. They, and the activist judges who should know better, contend the founders of the country created a document to strengthen the sovereign powers of the state and prevent a strong national government. This is not consistent with history; it is, moreover, inconsistent with the words of the Constitution.

Any school child knows that the Declaration of Independence was signed on July 4, 1776; perhaps fewer know that the Constitution was signed on September 17, 1787. During that ten year period, the United States operated under the Articles of Confederation. It was the dissatisfaction with the Articles that engendered the drafting of the Constitution.

The Articles created a Confederation, called the United States of America. In a confederation, the individual political units, states in this case, maintain their sovereignty (in other words, each is its own nation), but they join together in a coordinated way to deal with certain issues, such as security. This independence of each political unit is seen as both the main advantage and main disadvantage of a confederation. To put it into perspective, many confederations have been tried throughout world history, but none survive today.

Among the major flaws under the Articles were that the national government could not levy taxes; it was dependent on whatever the individual states sent in voluntarily. When the states refused to pay taxes, the United States could not prevent British and Spanish encroachments on our borders. In addition, the United States had no power to regulate commerce between and among the states, leading to bitter tariff wars between them. This type of in-fighting did not help alleviate the economic depression that set in after the war ended.

As a consequence of these issues and problems, the Continental Congress drafted the present Constitution and as specific limitations on Congressional power, adopted the Bill of Rights.

Some of the specific "enumerated" powers of congress are quite interesting in the light of present-day Republicans' message.

"To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations". A bill has been introduced in Congress by Michele Bachmann (R-MN) forbidding the use of or reference to International Law of the laws of other nations,

"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;". Conservative legislators and their activist judges urge that the intent of the Constitution must be discerned from its actual literal words. Notice that the Air Force is (deliberately?) not authorized. Is it therefore unconstitutional? Of course not. An Air Force would have been inconceivable in the 18^th Century. Our Constitution, however, is a living document, able to accommodate ideas and technology that could not have been imagined centuries ago.

But the framers of the Constitution were aware that the future might hold challenges that would have to be met. Thus Congress had the explicit authority:

"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."

The genius of our national Constitution is evidenced by comparison with the Constitution of the State of Florida. In the 224 years since the adoption of the Constitution, there have been only 27 Amendments. The first 10 are the "Bill of Rights" which was adopted in 1789 just months after the Constitution went into effect. Two Amendments involved the attempt to regulate behavior based on the moral and religious precepts of some; the 18^th Amendment created Prohibition and the 21^st repealed it. Most of the remaining Amendments were adopted to expand voting and other civil rights.

Florida, on the other hand, has had six Constitutions in the 166 years since it was admitted to the Union. The latest and current Constitution was adopted in 1968 and had been amended to include such arcane subjects as a prohibition on the use of gill nets in fishing, protection of pregnant pigs from cruelty and confinement (once the pig is no longer pregnant, anything goes!) and the prohibition from issuing a medical license to a physician who has lost three medical malpractice suits.

The United States Constitution is a living instrument with language that reflects the present. The prohibition of "cruel and unusual punishment", as an example must be read in the light of present day experience. Flogging might have been acceptable in the 18^th Century; it would not be in the 21^st. Just as we recognize the Air Force as Constitutional, we cannot adopt a position that would restrict governmental activity solely because it is not expressly mentioned in the Constitution.