July 5, 2012 by David K. Sutton
The Irony And Deceit Of Constitutional ‘Original Intent’ Arguments
E.J. Dionne has a great piece in the Washington Post: The Founders’ true spirit. In it he writes, “Differences over policy are often disguised as differences over whether a preferred choice is constitutional or not. When we should be addressing pragmatic questions — Will this approach work? Will it solve the problem it’s designed to solve? Is this a problem government should do something about? — we instead fall back on rather abstract discussions of whether a given idea violates the Constitution.”
What was the original intent of the Founding Fathers when it comes to universal health care? Well, we simply don’t know. It was not an issue of their time, a time before modern medicine and modern health care services, along with the associated high costs of these services. So when you hear someone use the word “unconstitutional” when they are describing the Affordable Care Act (Obamacare) or any other ideas for how to achieve universal health care you have to ask yourself how anybody could know what the Founders’ original intent was on an issue they never considered in the first place.
We are left to argue the constitutionality of Affordable Care Act provisions like the individual mandate on the grounds of things like the “commerce clause.” What we overlook is that past judicial rulings usually play a bigger role than does the written words of the constitution, at least when it comes to debating and then passing legislation. If there is one “original intent” we know of the Founding Fathers it is that they wrote the constitution intentionally vague. This is an important distinction to understand. What is or isn’t constitutional is decided by the judicial branch. This is because most legislative provisions simply are not mentioned in the constitution, therefore it is up to the judicial branch to interpret the words of the constitution, if these provisions face legal challenge.
E.J. Dionne reminds us of the preamble to the United States Constitution. It reads:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Dionne reminds us of the importance of those first few words, “We the People.” It is up to us to decide the path of this great country. It is no longer in the hands of the Founding Fathers. They crafted a framework that we can build on to move the country forward. This is why those who subscribe to an ideology of strict original intent have it wrong. The only intent we can ascertain is from the written text of a purposely vague document, the constitution. Beyond that it is up to “We the People” to make the country adapt and work better for all citizens as times change “in Order to form a more perfect Union.” There was no original intent when it comes to universal health care or climate change or any number of important issues that we now face. If we get bogged down in arguments over original intent we ironically lose sight of the real original intent.