Interpreting the Living Constitution, as the Founding Fathers Intended

“We have to appoint strict constructionist judges because judges interpret the constitution. They should not be allowed to make it up… They will not get it into their heads that they’re really legislators and that they can go around changing things.” – Rudy Giuliani

The next candidate who claims that strict constructionism is necessary to ensure that we follow the intentions of the Founding Fathers will lose my vote.

Strict constructionism is the judicial philosophy suggesting that the Constitution must be interpreted according to its “original intent,” and that attempting to approach it in a modern context is “revisionism,” that corrupts and destroys the document’s power. Additionally, any powers not specifically given to the government in the Constitution are forbidden to it, according to strict constructionists. The most incredibly inaccurate point made by strict constructionists to support their view is that, by removing the Constitution from our contemporary world, we are respecting the will of the Founding Fathers.

What Founding Fathers are they referring to? Thomas Jefferson once suggested that all laws should automatically be repealed every 30 years, so that each generation has the opportunity to make laws that reflect their societies. Alexander Hamilton, John Jay, and James Madison, in their masterpiece of Constitutional commentary The Federalist, argue that a broad interpretation of the Constitution is necessary for the sake of a powerful and united country. As Madison put it in Federalist No. 44:

“The ‘power 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.’… Without the SUBSTANCE of this power, the whole Constitution would be a dead letter.”

The Founding Fathers never intended for the Constitution to be viewed as a time capsule from 1787. They never intended for the Constitution to be viewed as limiting the federal government’s power to indirect taxation, raising armies, and running a postal service. In fact, Hamilton argued that the power of the government to tax and to raise armies should not be limited. He also argued that the government has the right and the duty to establish energetic and massive public enterprises to meet the needs of the people.

Any strict constructionist who feels that my last three posts, collectively entitled “Competition is Good,” would contradict the visions of the Founding Fathers and contradict the Constitution needs to brush up on history and on the men who wrote the Constitution. The Founding Fathers were a diverse group of men, and I am certain that a number of them would welcome the proposals I recently laid forth.

Any strict constructionist who believes that the government has no Constitutional authority to directly address the health care, energy, and education crises facing our nation will not receive my vote.

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