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The Modern Constitution

in Contemporary Politics/Political Issues by

Imagine a roomful of politicians with disparate beliefs, tasked with creating a document to govern an entirely new country. In 1787, America’s founding fathers faced this seemingly impossible challenge. Countless debates, numerous committees, and five months later, the newly formed United States of America had the Constitution, the guiding document for our nation and the supreme law of the land. In the process of creating the Constitution, every word was deliberately calculated—the founders sought to create a document that protected America from humanity’s worst impulses. Yet, when reading the Constitution, perhaps the most notable aspect of its prose is its lack of specificity in many places. The preamble includes phrases such as “general welfare,”  an assertion of “establish[ing] justice,” and a declaration of “secur[ing] the Blessings of Liberty for ourselves and our Posterity,”   Furthermore, the Bill of Rights enumerated a list of rights without specifying the extent (or lack thereof) of those rights. Many cite this vagueness as a flaw. Counterintuitively, the ambiguity of the Constitution actually serves as its greatest strength—allowing for each generation to adapt it to its needs, as the Founders intended. Thus, the Founders effectively created a “living” Constitution through their use of ambiguous diction.

Nearly a quarter of a millennium later, our Constitution feels as if it’s being stretched nearly to its limits. On the left, many call for radical changes to our political system—including “abolishing the Senate” and electoral college. Meanwhile, on the right, the so-called “Constitutional Conservatives” are seeking to exploit Article V of the Constitution to trigger a Constitutional Convention, which would theoretically allow the quick implementation of “an amendment to the Constitution requiring Congress to balance its budget” and potentially other new amendments. As a matter of fact, 28 out of the needed 34 states have already called for a convention. Some, such as The Atlantic’s Jeremi Suri, suggest scaling-back the role of the Presidency to adapt to today’s multifaceted challenges. In this age of uncertainty for the viability and sustainability of our Constitution, Americans should not forget that the United States has been built upon the premise of our Constitution—and impulsively abandoning it to find quick fixes to a few of today’s political issues would be unthinkably short-sighted.

First, the Constitution must be established as deliberately written vaguely in order to ensure that the Constitution would be able to fit the needs of each generation. Second, historical rulings and evolving interpretations of the Constitution must be shown to support a living Constitution. Third, the US must identify how the Constitution can be interpreted today to address the challenges of the 21st Century.

The first aspect I will examine is the Constitution’s intentional ambiguity. The first—and perhaps most compelling—piece of evidence supporting the Constitution’s deliberate vagueness is the ongoing lively debate concerning its meaning. From Supreme Court Justices to politicians to lawyer to citizens, nearly every person has some way of interpreting the Constitution—and the range of interpretations are a testament to its ambiguity. For instance, Ruth Bader Ginsburg practices a philosophy that embraces the Constitution as a “living” document—one which adapts with the needs of the society. Others, most prominently the late Justice Scalia, practice textualism or originalism—which interpret the Constitution in modern-day as it would have been interpreted in the 1700s. In fact, Scalia called the Constitution is “dead, dead, dead” — refuting the notion of a living Constitution. Beyond just the disparity in philosophies, word choices like “general,” “well-regulated,” “liberty,” and “justice” are intentionally not clearly defined—leaving its meaning up to interpretation.  

However, to evaluate Scalia’s philosophy on his own terms, perhaps the best people to consult would be the Founders themselves. Thomas Jefferson proposed that the Constitution be redrafted with each generation to ensure that it suited the needs of the changing society. Moreover, Alexander Hamilton, Jefferson’s famous rival, also argued when referencing the Constitution that he never expects to see “perfect work from imperfect man.” That being said, other Founders argued for a more “dead” Constitution; James Madison, for instance, claimed, “The important distinction so well understood in America, between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed in any other country.” Evidently, even the Founders struggled with how the Constitution should be interpreted. Yet, the unavoidable fact that the Constitution was written in such abstract terms—“well-regulated,” “general welfare,” and “establish justice” (to name a few)—implies that the Founders did indeed intend for the Constitution’s meaning to evolve to face the issues facing each generation.  

Secondly, I will consider the changing historical interpretations of the Constitution within our body politic. History—quite irrefutably—seems to support the interpretation of a living Constitution. For, in the original draft of the Constitution, African-Americans were considered “”three fifths of” white people. From an Originalist perspective, the Constitution supports the degradation of non-white people. However, through the lens of a living Constitution, Americans can recognize—and work to account for—the dark chapters of its history without remaining inextricably connected to overtly racist policies. A recent Pew Research poll found that 50% of Americans believe that the Supreme Court should interpret the Constitution’s meaning in light of its current meaning, while only 45% argued that it should be interpreted as it was originally written. For our Constitution to remain non-racist and viable, we must consider it in the context of modern society and contemporary issues.

Simultaneously, we must accredit the Constitution—identified in The Atlantic’s “How American Politics Went Insane” as the “DNA” of our country—with the success of America. The US is the wealthiest country in the history of the world, in no small part due to our Constitution.  As Ruth Bader Ginsburg recognizes, America has “the oldest written constitution still in force in the world.” The Constitution has immortalized America’s central values—forcing Americans to compromise to compromise so that “the few could not oppress the many, and the many could not oppress the few.” The Atlantic’s “How American Politics Went Insane” also supports this interpretation, arguing that the vagueness of the Constitution catalyzed the creation of vessels such as “state and national party committees, county party chairs, congressional subcommittees, leadership pacs, convention delegates, bundlers, and countless more” in order to execute the vision of the Constitution. To continue the scientific analogy, these “middlemen” were “RNA” to the Constitution’s DNA. Certainly, as arguably the oldest democracy in the world, America has its Constitution to thank for its comparatively unwavering adherence to democratic principles. Yet, the Constitution was designed to create gridlock if politicians “refuse to compromise.” In President George Washington’s farewell address, he warned against such partisanship, well-aware of the risk of devastating political gridlock as a result of such partisanship. Today, the tribalism that plagues contemporary politics—combined with attempts to subvert democratic processes to maintain power—threaten the sanctity of the Constitution. Essentially, these middlemen have began subverting—not supporting—the Constitution. In other words, the “RNA” that once helped realize the Constitution’s vision has grown defective—largely from this notion of Originalism. Textualists—both legislators and judges—often use the antiquated meanings of the Constitution to prevent progressive policies from passing. Even in seminal cases such as Brown v. Board of Education, court precedent was less emphasized in the decision than social science revelations. Decisions like that one underscore the vitality of using a living Constitution to account for the flaws of—as Hamilton famously said—“imperfect men.”           Finally, I will consider how the Constitution’s values have shaped the success of the US. Our Constitution has guided the US to a position of great power and wealth; coupled with a shrewd interpretation of the Constitution, that power and wealth can help lead the world towards solutions to challenges of the 21st Century. However, rather than just discarding the Constitution that has guided our nation for almost 250 years, we must put to rest the notion that the Constitution must be interpreted as the Founders intended—their intent was to ensure wealthy white men exclusively controlled the government.  If you believe that our government should function that way, then you absolutely can preach the necessity of Originalism. However, if you do not believe that only white men should control the government, then you—to some degree—believe in a living Constitution. Interpreting the Constitution as living certainly offers solutions to today’s most pressing issues: promoting the general welfare for “our Posterity” likely means ensuring the general survival of our species—mandating immediate action against climate change (a recent IPCC report suggests we have 12 years to act on climate change before it threatens millions of lives). Establishing justice probably implies executing a criminal justice system that does not disproportionately attack one race, as ours currently does (for instance, African-Americans represented just over 10% of illicit drug use, yet also represented over a third of all drug arrests).  Through a living interpretation of our Constitution—built on its deliberate vagueness—it certainly is equipped to face the challenges of the 21st Century.

Who’s Responsible for Solving the Opioid Crisis?

in Contemporary Politics/Political Issues by

The opioid crisis unequivocally threatens the general welfare of the United States of America. In 2016, the opioid crisis single handedly caused more American fatalities than the entire Vietnam War. Regardless of whether the Constitution is interpreted through an originalist lens or as a living document, both readings seem to support the notion that Congress is delegated the powers to “lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common defense and general Welfare of the United States. When viewed through the definition of welfare—“the health, happiness, and fortunes of a person or group,” it becomes abundantly clear that the opioid crisis is violating the general welfare of thousands of American citizens. When tens of thousands of Americans are dying annually from an opioid epidemic that is only worsening, Congress must adhere to the Constitution and provide for the general welfare of the American people.

Admittedly, there is no overt enumerated power that explicitly gives the federal government power to remedy a drug crisis, yet, even so, the Constitutional support remains particularly compelling for as to why the federal government has a Constitutional mandate to help remedy the Opioid crisis. The general welfare clause seems especially noteworthy when coupled with the Supremacy clause, which states “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.” Put simply, the Opioid Crisis is threatening the literal, physical (and thereby general) welfare of Americans. Therefore, Congress (supported with the Supremacy Clause’s power over state laws) carries the burden of solving the Opioid Crisis. Moreover, given the alarming number of pharmaceuticals that are imported internationally or between states, the Commerce Clause further delegates the federal government power in fixing the Opioid Crisis. The Commerce Clause explicitly gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Barring the antiquated Indian Tribes phrase, the Opioid Crisis pertains to both interstate trade and trade between foreign nations. Pharmaceutical companies distribute opioids between states, and numerous amounts of synthetic opioids (which are quickly gaining popularity) come from countries such as China. Thus, the Commerce Clause also gives the federal government an obligation to remedy the ongoing opioid crisis.

Yet some, such as Real Clear Health’s Earl Baker, argue that the states are complicit in fixing the Opioid Crisis. Baker, in his article “The States Need to Step Up to Opioid Crisis,” calls for concurrent coordination between the state and federal government to remedy the Opioid epidemic. From Real Clear Health, an expert source for health-related issues, Baker explains how the states are not being vigilant enough in fighting the Opioid Crisis. He acknowledges that there must be coordination between the state and federal governments but seemingly suggests the states ought to orchestrate both the preventative and treatment efforts. In today’s world of intertwined, cooperative federalism, suggesting that the state government works alongside the federal one is far from an unreasonable or radical proposal. However, the real issue in Baker’s analysis lies in the fact that he largely places the responsibility of solving the Opioid crisis on the state governments and local communities. For instance, he unapologetically argues, “It’s time for the states to step up in the critical fight against opioids with more than just rhetoric.” In doing so, Baker misguidedly places the responsibility of a solution on the states. Sure, the states do in fact have a better idea of their communities’ specific needs. But the states cannot raise the funds necessary to solve their respective crises in a politically viable manner. The Federal Government must, at the very least, designate categorical grants to the states in order to ensure that states can afford to enact meaningful, reactive, and preventative reforms.

However, as previously mentioned, a reasonable reading of the Constitution implies that the Federal Government should be more involved in solving the Opioid crisis than just granting funds. Congress, to effectively fulfill their Constitutional duty of promoting general welfare, must put aside petty partisanship to legislate solving the Opioid epidemic with the interdisciplinary, multifaceted solutions it demands. They must consider the roles of pharmaceutical companies, doctors, foreign powers, and the black market in creating and exacerbating the Opioid Crisis. There simply is no quick and easy fix to such a widespread, devastating crisis.

As the Editorial Board of The New York Times say in “An Opioid Crisis Foretold,” legislators would be wise to treat the Opioid epidemic as a “complex, multidimensional problem.” The article uses historical events—ranging from China’s Opium Wars to the AIDS crisis—to evaluate how America should proceed in dealing with its newest drug epidemic. Comparing today’s Opioid Crisis with the fairly recent AIDS crisis, the Editorial Board recommends that Congress funds “prevention, treatment, support services, and research.”  Further supporting the Constitutional interpretation that the federal government must play a hand in solving the Opioid Crisis, the article calls for “stronger leadership” from the federal government.  Thus far, almost all of the funding designated to the Opioid Crisis has been spent on reactionary treatment services.  Although adequate funding for treatment is incredibly important, the already worsening Opioid Crisis seems likely to only become more devastating if Congress does not attack its root causes.  

Failing to respond to the deaths of thousands of Americans annually—a clear violation of the public’s general welfare—is an abdication of Congress’s Constitutionally-outlined duties. The federal government, working alongside state and local governments, must take charge in preventing the growth of the Opioid crisis, treating its victims, and funding research to best understand the causes and effects of this devastating epidemic.

Graphic Design by Jackson Edwards

www.realclearhealth.com/articles/2018/08/23/the_states_need_to_step_up_to_opioid_crisis_110820.html

www.nytimes.com/2018/04/21/opinion/an-opioid-crisis-foretold.html?rref=collection%2Fsection

 

The Constitutional Argument for Sanctuary Cities

in Contemporary Politics/Political Issues by

Imagine you have two undocumented immigrants who enter the country and settle down in a certain city. One of them, a 27 old male named Joseph, illegally entered the country seeking a no skill needed minimum wage job to support himself and his family back home. Unable to find a secure job in his hometown, he emigrated to the states in hopes of finding a stable source of income. The other is a 24 year old female named Jane who came to the US illegally in an effort to escape government corruption in her home country. Anyways, last week, Joseph was pulled over for a traffic violation and was brought into the local police station because he did not have a valid driver’s license. He was identified in the federal database and ICE was alerted. Also that week, Jane was arrested for theft and was similarly identified in the federal database; ICE was alerted. Under federal law, both these people should be detained and deported back to their home countries. However, it’s entirely unjust that a man who was charged with a harmless traffic violation receives the same penalty as the woman who committed a felony. Some cities today back this idea, calling themselves sanctuary cities, and choose to only honor federal immigration law to a certain degree. While the federal government and the Trump administration seems to target these sanctuary cities because they interfere with the larger scheme of mass deportation, municipal governments in these cities choose to not help with the enforcement of federal law.

This presents us with a conflict of interests. On one hand, the federal government is strictly pushing for the defunding of these sanctuary cities, while select municipal governments fight for their right to be free of federal control. So who should have the final say?

The constitution declares that the power ultimately falls to the state — or a city — under the 10th amendment. Author Ilya Somin of The Washington Post supports this claim in his article, “Trump Can’t Stop the Sanctuary Movement,” stating that regardless of the federal government’s pressure on a municipal government, the city is free to carry on with their plans (without facing consequences from the federal government). He cites a Supreme Court case, New York v. United States, to show that rulings have been made saying that it is illegal for federal governments to take control of state governments in order to execute their will. He continues to suggest that, although Trump’s threats of defunding of sanctuary cities may seem looming, they are in fact much more harmless because the federal government does not have the ability to simply cut off funding because they disagree with a state’s views.

His claims appear to be generally unbiased and well-supported, but lean more toward support of the state’s ability to execute their will over the requests of the federal government. He acknowledges the argument toward federal powers having the final say over the matter, but argues against it with constitutional support and relevant court rulings.

Furthermore, although Somin’s argument is structured around the theoretical inability of the federal government to interfere with state affairs, another article published by The New York Times examines a specific case: Trump’s attempted interference in the sanctuary city movement. Author Peter Markowitz discusses the Justice Department’s lawsuit against California, which is centered against 3 California laws that basically outline their sanctuary laws. He says the case is based off a similar case in which Arizona changed their legislation to one that did not require state police to aid federal efforts to enforce immigration laws. The lawsuit against California mirrors that lawsuit; if Arizona is not allowed to interfere in federal immigration enforcement, California shouldn’t either. He argues that California is not impeding federal enforcement of immigration laws, but simply taking themselves out of the equation, which he believes to be absolutely legal.

The choice to integrate sanctuary laws into state or municipal legislation falls outside the realm of the federal government. Pursuant to the 10th amendment, any power not enumerated to the federal government becomes the power of the state. Although immigration overall is a federal power, the federal government should be only able to use their resources to enforce its policies, not those of the individual states. The resources of the state should be utilized in enforcing the law of the state, rather than being at the hands of the federal government. If we allow for the federal government to interfere with matters that are clearly under the jurisdiction of the state, what will stop them from expanding their power from restrictions on sanctuary cities to a multitude of federal interests?  

 

https://www.nytimes.com/2018/03/09/opinion/trump-california-sanctuary-movement.html

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/26/federalism-the-constitution-and-sanctuary-cities/?utm_term=.a23e9144eb4b

 

The Events that Shape a Generation

in Gun Control/Political Issues by

Undeniably, aspects of life evolve with each generation that, in turn, forces our government to change as it adapts to the changing world. However, this change in the government typically takes time, as the affected generation must grow up and finish their educational career before they begin reshaping government policies. The Greatest Generation grew up during the Great Depression, Baby Boomers with the Vietnam War, Gen X with the removal of the Berlin Wall, and Millennials with 9/11.  The typical period of waiting for the government to adapt is not satisfying to today’s American teenagers—the generation of mass shootings. The future of our country is being killed in movie theaters, concerts, and classrooms; they are no longer waiting for these tragedies to fade away. They demand “Gun Reform,” but that, depending on your perspective, can vary drastically in meaning.

The most prominent demands include the raising of the age at which you can buy a rifle to at least 21, the addition of a waiting period, universal background checks, and closing of all gun show, hereditary, and boyfriend loopholes. These might appear extreme at first glance, but the generation(s) with the power to change the laws are unable to fully understand and process why they are demands. As a child born in December of 2001, I cannot possibly fathom what it was like to live during the Great Depression, to hear the news of JFK’s assassination, or to hear the news of 9/11. An adult, similarly, can not imagine growing up in a seemingly endless pattern of mass shootings. Until the current representatives have been traumatized by having active shooter drills in the middle of class, the current representatives do not have the right—nor experience— to claim these solutions unreasonable. Moreover, the Constitutional interpretation that “the right of the people to keep and bear Arms, shall not be infringed” means that any person can buy a weapon specifically designed to kill as many people as quickly possible at a gun show without even showing an ID is both than outdated and dangerous. Implementing a waiting period would decrease murders and suicides, as it forces a person to contemplate their decision, often preventing dangerous and rash decisions. Universal background checks will promote a safer society, keeping weapons away from convicted criminals and people with a history of mental illnesses. Lastly, raising the age from 18 prevents children from endangering themselves or the people around them. Personally, I believe the legal age to purchase a gun should be 25—when scientists say the brain is fully matured.

With generational changes, the government should strive to change at the pace of an evolving world. In some ways it’s been able to evolve successfully; however, the Second Amendment remains a very controversial topic, where the government has failed to implement the adaptations its citizens demand. Despite the founding fathers’ envisioning the Constitution as a document that would adapt with the country (Thomas Jefferson hoped it would be rewritten with every generation), the US finds itself hesitant and resistant to desperately needed gun reform that will save lives.

Graphic Design by Jackson Edwards
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