"I would do it, but I'm paralyzed with not caring very much." - Spike
Question #92712 posted on 12/12/2019 1:56 p.m.
Q:

Dear 100 Hour Board,

There are basically two different points of view about the U.S. Constitution, the traditional and the progressive.

The traditional constitutionalists believe that the Constitution was established by God through wise men raised up for that purpose. The Constitution should be maintained for the rights and protection of life, including the right and control of property and the free exercise of conscience. The purpose of the Constitution is to limit government power to a few specified functions in order to prevent tyranny. Hence, government is best which governs least, but acknowledges some government is essential. Any new law, regulation, or policy must first pass the test of whether or not it was in the original intent of the Constitution. There is a Constitutional process, made deliberately difficult, to change the Constitution if needed. Nothing prevents individuals from doing good within the framework of the constitutional laws.

The progressive interpretation is that the Constitution is “a living document.” The Constitution is made to mean whatever it takes to make changes for social justice — equality, fairness, health care, a living wage, housing, gender, sex, abortion, education, sexual orientation, and anything else considered a necessity of life. Judges are sought who can be counted on to champion expanded rights. Power is coveted to expand the role of government in order to change the society through laws, public education, and control of the media. The Constitution is more of an obstacle to effecting the changes so impatiently desired. Often the Constitution is thought of as being irrelevant in today’s world. The Constitution is a guideline, but the higher value is to change society for the better, by any means necessary, to compel or direct people to do the right thing and think the right thoughts, justifying it afterwards with, “Well, we won, didn’t we?”

Do you think traditional constitutionalists or progressive constitutionalists will best serve the interests of our people today?

-Mark

A:

 Dear Mark,

I think this is another instance when "and" is better than "or". Your question is whether traditional constitutionalists or progressive constitutionalists will best serve the interests of our people today. However, I think the answer is the combination of traditional constitutionalists and progressive constitutionalists will best serve the interests of our people today. I think the Constitution of the United States is remarkably stable. It appears that our founders had great forethought and so those aspects of the constitution, in my opinion, should remain as-is. 

There are, however, many things that the founders would have never been able to foresee and it is those things that need to be addressed by a living document. I think it would be unwise to think that the Constitution (written by men and not by God himself) is infallible and should never be changed or interpreted differently. That line of thinking seems somewhat barbaric to me.

Therefore, Mark, I think the answer lies in a combination of the two, not one or the other.

I hope that helps!

-Sunday Night Banter

A:

Dear person,

I think seeing the constitution as established by God is totally bonkers.

-Sheebs, a non-American

A:

Dear Mark,

I really enjoy this BYU Devotional about the constitution by federal judge Thomas B Griffith. I personally see the constitution as an extremely well-researched document (see the Federalist Papers or the wonderful musical Hamilton, or other things by or about Constitution authors). I don't know if either of those viewpoints outlined are necessarily correct, and my personal opinion of the constitution as a document that outlines a government that moves slowly and deliberately to best satisfy the needs of all of its citizens, not just the majority or any particular group. I like the way David Brooks put it this last week that we are trying to form one of the first multicultural democracies in the world, and I think that the constitution does an amazing job to support that.

-Inklings

A:

Dear And the Funky Bunch,

Your description of the progressive view of the Constitution is pretty biased, my dude. The progressive view does not say that the Constitution is irrelevant or a barrier, it just interprets the Constitution differently than the traditional view. Sure, some people may not agree with that interpretation, but that doesn't mean that they're trying to destroy the Constitution and justify it by saying, "Well we won, didn't we?" Instead, the progressive view says that in order to achieve the actual goals of the Constitution, for all people, we need to be doing more. It's not about getting rid of the Constitution, but about actually carrying out the spirit of it instead of getting so wrapped up the letter of the law that we forget the intention with which it was made.

The Constitution wasn't made to explicitly limit government. In fact, it actually creates a pretty powerful government. If the founders had solely been trying to limit the government, they would have stuck with the Articles of Confederation and not created the Constitution at all. Yes, it does put limits on government power, but it was made with the purpose of creating a government powerful enough to achieve its goals (unlike the Articles of Confederation). 

The wording of the body of the Constitution suggests the founders were trying to create a government that could not just avoid falling into tyranny, but that could also help its citizens lead a good life instead of simply passively watching as people fail. And yes, I get that saying "the founders" is incredibly vague, because who are we even talking about? The people who led the revolution? The people who signed the Declaration of Independence? Everyone at the Constitutional Convention, or only those who signed the finished document? There are SO MANY people who could be considered founders of the United States, and they disagreed on SO MANY of the issues. There were definitely founders who thought the Constitution was going too far in the powers it granted the government, but there were also founders who thought it didn't go far enough (like Alexander Hamilton, who proposed a plan that allowed for a monarch for life). But they eventually reached a compromise and drafted what we currently have as our Constitution, and that document is fundamentally a progressive one. It created a much more powerful government than the one allowed for under the Articles of Confederation, and allowed for more broad-sweeping rights than almost any other government in the world at the time. It attempts to protect individuals, both from potential tyranny of the government, as well as from the possibility of completely failing because the system is set against them.

What language is it that suggests the founders were trying to protect citizens not just from the potential of a tyrannical government, but also remove barriers that would make it hard for them to succeed? The whole preamble, for one thing. Here's what it says: 

We the people, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty for ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

I get that the goals they're laying out here are pretty vague and can be interpreted in a lot of ways (How do we know once justice has been established? What are the blessings of liberty?), but nonetheless, they're certainly loftier than simply saying, "Let's make sure the government isn't too powerful." The goals of the Constitution are to prevent tyranny, sure, but also to do things like promote the general welfare. A country's welfare is basically just a measure of what quality of life its inhabitants have, so the fact that the founders were thinking about the general welfare meant they wanted the Constitution to help normal, ordinary people have a good quality of life. And to accomplish that, a lot of people need more than the government simply staying out of their way. Imagine that you're trying to scale a super tall vertical wall with no hand or footholds, and no climbing equipment of any kind. If someone steps off to the side and says, "Go ahead! You're free to climb this wall!" that doesn't mean that you're automatically going to be able to climb it just because that person isn't actively in your way. More likely, in order to get up the wall you'd need the person to give you some sort of boost so you can access a handhold that had previously been just out of your reach, or help you get climbing equipment like ropes and a harness and then belay you, or help you get a ladder, or something. You're still the one who has to do the work to climb over the wall and get to the other side, this other person isn't doing it for you, but you wouldn't have been able to do it if they hadn't stepped in to give you some support when you're just getting started. Being that other person who's there to give a leg up to struggling people is what the progressive view of the Constitution says governments should be doing. Maybe some people were naturally born better climbers, or had climbing equipment passed down to them from their parents, or whatever, but for the people who didn't have the good luck and random chance to be born with those things, they might need some help from the government. Because promoting the general welfare of everyone doesn't just mean letting those with naturally privileged lives have a good quality of living, it means helping everyone have a good quality of life.

Also, I know this isn't from the Constitution, but it is from the Declaration of Independence, which contains more of the founders' ideals and thoughts about the way our country should be. And the Declaration of Independence says that "all men are created equal," and "endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness." If everybody is really equal, shouldn't we be doing more to give people equal opportunities? I'm not saying that everyone should automatically end up with the same results, but shouldn't people at least have the chance to get those results? And furthermore, can you really "pursue happiness" if you're so busy just trying to make ends meet that you're working multiple low-paying jobs, or if the government doesn't allow you to marry the person you love and who brings you happiness, or whatever? It's language like this and the preamble to the Constitution that leads people to believe that the Constitution calls for a government that is strong enough to help people who need help so that they actually have a chance at a happy life. It's not that they're throwing out the Constitution; far from it! They're just reading the founding documents carefully and trying to think about how to achieve the ideals and goals expressed in them.

Maybe you think what I just said is totally crazy, and that it's still not the government's place to intervene in people's personal affairs. After all, the Bill of Rights has a lot of language about what Congress "shall not" do, which would seem to imply that they didn't want Congress to do very much. But all of that changed with the Reconstruction amendments, passed in the aftermath of the Civil War, especially the 14th amendment. Some historians even call the Reconstruction amendments the Second Founding, or refer to it as "completing the Founding," because they believe it was only then that our country as we know it today was truly established. In these amendments there's a sudden switch from talking about what Congress shall not do, and instead every single one of the Reconstruction amendments ends with the clause, "Congress shall have power to enforce this article." Maybe if we lived before the 1870s we could say that the government shouldn't have power to do anything more than get out of people's way as they live their lives, but a scholar of the Constitution can't look at the Reconstruction amendments and not say that they take things in a different direction than the previous amendments. And whether or not you like those amendments, they're part of the Constitution and we're bound to follow them, unless we pass a new amendment annulling them in some way (but considering that they ended slavery and expanded voting rights, that seems unlikely).

Because of the Reconstruction amendments, the idea that the government should actively help people is literally part of the Constitution now. It's a part that many traditionalists don't emphasize, and that's fine. A lot of progressives don't emphasize things in the Constitution that traditionalists do, either. However, the point is that the Constitution is full of ambiguity, and there's plenty of room for people to interpret it in different ways in good faith. Hence the conflicting viewpoints and interpretations of it. You don't have to believe that people who interpret it differently from you are interpreting it the "correct way," but you at least have to respect the fact that they're doing their best to figure out what it means and apply founding principles to our world today. Don't do them the disservice of thinking that they're just trying to twist the Constitution, or even get rid of it entirely, so that they can "win."

You sort of make it sound like to say the Constitution is a living document is crazy, but it is a living document. Article V is literally all about how the Constitution can be amended, because the framers realized that although they were trying their best, they either might have included some mistakes or might not have been able to predict everything that would happen in the future. And to say that just because something made it into the Constitution means that it's automatically inspired and that all the framers thought it was a good idea is objectively wrong. The Constitution protects slavery, for crying out loud! The three-fifths compromise said that slaves only count as 3/5 of a person for purposes of representation, there's a clause saying that the international slave trade couldn't be abolished for at least 20 more years, and Article IV has a fugitive slave clause saying that any escaped slave must be returned to their owner, even if they escaped to a free state. To say that protecting slavery was inspired by God is crazy, and the framers didn't believe that it was, either (or at least not all of them). All the parts of the Constitution that protect slavery were only included because it was the only way to appease many of the representatives from Southern states and ensure that the South would ratify the Constitution. If you don't believe me on that, read James Madison's notes on the Constitutional Convention. Now, thanks to the 13th amendment, slavery is illegal in the United States, so wow, isn't it great that the Constitution can be amended and changed to fit changing ideals and better serve our modern world?

-Alta