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LIVING AND BREATHING?
By Nikita Chirkov     

It is often remarked in circles too numerous to mention and from philosophies too numerous to expose that the Constitution of the United States is a living and breathing document; and it is done in such a matter that the majority of individuals begin to uphold the latter view as the fundamental principle of Constitutional interpretation. Modern republicans and democrats alike favor this position without understanding its true meaning or effect on the American society. Therefore, let us take a good look on this position from the Constitutional perspective and forever put an end to these inadequate and improper views of our Framing document. 

 

The Constitution is the most magnificent document on the face of the Earth. Its Framers, true geniuses in the field of government, have created a system so brilliant and efficient that no other country has been able to replicate it with a coequal magnitude ever since; its called Federalism. This breakthrough position achieved something that no other democracy ever instituted. It balanced the power not only between the individuals and the government, but also between the local and the federal government, making each community, each region and each state as unique as an individual in a society of men. A leading Constitutional Attorney Mark R. Levin in his book Liberty and Tyranny makes the same point: “States are government entities that reflect the personalities, characteristics, histories and priorities of the individuals who choose to inhabit them. They have diverse geographies, climates, resources, and populations. No two states are alike. The same can be said of the cities, towns and hamlets within the states, which number in the tens of thousands and dot the nations landscape.” Under the system of Federalism these diversities do not only exist, but rather flourish from the roots of faction and liberty. Under Federalism, states create their own economic environments, establish their own constitutions, lay forth their own laws and manage their own social experimentation without influencing or endangering the whole nation. This enables us, the lawful citizens, to choose the best economic, social and legal environment under which we want to live. If an individual opposes state income taxes he may choose to move to a state that doesn’t have an income tax, or if he runs a manufacturing business in a state that heavily regulates manufacturing he may be more successful and prosperous if he moves his business to a state that rewards it. There is no other system in the world which creates such coexistence, diversity and fluidity of different jurisdictions in the same nation.

 

Why have so many societies failed to institute Federalism? I answer in the first place that Federalism and our Constitution are two inseparable elements, one a product of another. It is our Constitution that gave birth to Federalism and established the proper degrees of its implementation. I answer in the second place that many nations who truly strived to achieve Federalism failed due to their ever changing and ever evolving constitutions. Therefore we begin to visualize an all important concept of Constitutionalism, that is, Federalism needs Constitutional stability. After all, there is a good reason why amending the Constitution is nearly impossible and requires supermajorities of all states.

However there are those who oppose the latter truth. They seek not to preserve Federalism and constitutional principles, but rather exploit them to their own benefit and use the Constitution as a political expedient to advance their agenda. To such foul reasoning there may only be one outcome. If we choose to view our Constitution as “living and breathing”, unable to withstand the tests of time, and constantly subject to change through different merits of interpretation, then we choose the path that will forever injure the Constitution and will someday require us to tell our kids and grandkids great tales of what it was once like to live in America.  I don’t know about you, but I choose to see the Constitution through the same eyes and with the same intention as the brilliant men who designed it. Alexander Hamilton underscores this point in Federalist 33 “The propriety of a law in a constitutional light must always be determined by the nature of powers upon which it has been founded.” And most importantly, the Father of the Constitution James Madison said that “Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.” Living and breathing? Doesn’t seem that way to me.

 

When the evidence and historical context proves too much for anti-constitutionalists to handle, they resort to the backdoor tactics of smearing the Founders and the Framers themselves. The mother of these arguments sounds likes this: “Thomas Jefferson had slaves; he was a founding father, why should we listen to what he said?” Or an even better one: “The Constitution allowed slavery, why are you supporting it?” and so on and so forth. Let us further look into those claims. There is a difference between a Founding Father, and a Framer. The Founders are the men who founded the nation. The Framers are the men who designed the Constitution. Thomas Jefferson was a Founding Father. He did not create nor design the Constitution of the United States, matter of fact he was against it. While Madison, Hamilton and Jay were campaigning for Federalism through the series of essays called “The Federalist Papers”, Jefferson directed the release of the “Anti-Federalist Papers” in order to smear the Constitution. Moreover, Federalists as a party were strongly against slavery, while some Anti-Federalists (like Thomas Jefferson) were for it. Therefore, insulting Federalism by insulting the individuals who were against it in the first place is complete nonsense, and neither does it make a case against the Constitution. The second attack on Federalism is just as absurd as the first one is inaccurate. Did the Constitution allow slavery? Perhaps the Father of the Constitution James Madison knows the answer. In Federalist 42 he wrote in part: “It were doubtless to be wished, that the power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation. But it is not difficult to account, either for this restriction on the general government, or for the manner in which the whole clause is expressed. It ought to be considered as a great point gained in favor of humanity, that a period of twenty years may terminate forever, within these States, a traffic which has so long and so loudly upbraided the barbarism of modern policy; that within that period, it will receive a considerable discouragement from the federal government, and may be totally abolished, by a concurrence of the few States which continue the unnatural traffic, in the prohibitory example which has been given by so great a majority of the Union. Happy would it be for the unfortunate Africans, if an equal prospect lay before them of being redeemed from the oppressions of their European brethren!

Attempts have been made to pervert this clause into an objection against the Constitution, by representing it on one side as a criminal toleration of an illicit practice, and on another as calculated to prevent voluntary and beneficial emigrations from Europe to America. I mention these misconstructions, not with a view to give them an answer, for they deserve none, but as specimens of the manner and spirit in which some have thought fit to conduct their opposition to the proposed government.” The Constitution did not promote slavery; and the attempts to view it in this light were said to be outrageous by James Madison 200 years ago.

We need not to build another case in defense of our Constitution, for all the philosophical groundwork, degrees of operation and legal merits have been well established and documented before its ratification. We need not to invent new, novel methods of applying Federalism in a modern light, for all of its functions have already been explained in the Federalist Papers. And we need not to vigorously search for tricky logic to support our position, for the Constitutional principles are direct and clear. What we need instead, is the exposition of those philosophies that endanger our Constitution, through a simple test of history and facts. The most magnificent statements in favor of Federalism and the Constitution have already been made, and their authors long gone- all we need to do is simply bring them back to life.