History shows Constitution can't be taken literally

At a state GOP banquet and candidates’ forum last month in Keystone, Luke Korkowski stood before 400 party stalwarts and claimed the Constitution is being trampled.

Korkowski, a Crested Butte attorney seeking his party’s nomination for the U.S. Senate, said the federal budget deficit, and even the federal income tax, would vanish if the government stopped funding “unconstitutional programs.”

“Do we have a Department of Education in the text?” he asked. “Is that allowed by the text of the Constitution?”

He also called the Federal Reserve system “legalized counterfeiting” and said it was not allowed by the Constitution, either.

Korkowski, an unknown in a crowded field, withdrew from the race this month. But he got polite applause and 3 percent of the votes in the Keystone event’s straw poll.

The notion that the federal government is acting unconstitutionally seems to be spreading as the right rails against mandatory universal health insurance, a cap-and-trade system for polluters and other items on the legislative agenda of President Barack Obama and the Democratic majority in Congress.

Organizers of a “Save Our Constitution” rally in Denver last month denounced “governmental efforts to disregard the letter and intent of the Declaration of Independence and the Constitution.”

Right-wing talk radio host Rush Limbaugh said Obama’s economic stimulus and George W. Bush’s 2008 bank bailout were “bastardization of the Constitution.”

U.S. Rep. Doug Lamborn was cheered at a town hall meeting in Colorado Springs on Monday when he said federal health care programs were unconstitutional.

There’s a problem with that argument, though: there’s never been a consensus about the “true intent” of the framers of the Constitution, and the document has never been interpreted literally.

The country would have dissolved into anarchy if the First Amendment — “Congress shall make no law ... abridging the freedom of speech” — protected libel, slander or someone “falsely shouting fire in a theater and causing a panic,” as Justice Oliver Wendell Holmes famously asserted in a 1919 case restricting free speech during wartime.

Times of strife have produced numerous federal forays outside the Constitution. Lincoln suspended the Fifth Amendment guarantee of “due process of law” during the Civil War. Franklin Roosevelt flouted the Fifth Amendment when he incarcerated Japanese-Americans after Pearl Harbor, as did Harry Truman when he seized the nation’s steel mills during the Korean War and the younger George Bush when he imprisoned “enemy combatants” after 9/11.

Some claims about what’s in the Constitution are just wrong. For example, those who argue that the federal debt is huge clearly have a point. But those who argue that it is unconstitutional do not, since the document authorizes Congress “to borrow money on the credit of the United States.”

“People have a way of classifying anything they dislike as unconstitutional,” said Bob Loevy, a political science professor at Colorado College. “On the other hand, they’ll claim whatever they want to do is in the Constitution.”

Loevy said bogus claims about the Constitution were a product of “the increasing partisanship of American politics,” adding that “the language of politics has gotten harsher. It’s gotten less based on fact.”

In the preamble, the framers of the Constitution paint their objectives with a broad brush: “to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity.”

The “general welfare” phrase comes up again in Article I, atop a listing of the powers of Congress. It also has authority “to regulate commerce with foreign nations, and among the several states.” The “commerce clause” has been invoked to justify congressional intervention in civil rights, education, public health and many other arenas not directly concerned with interstate commerce.

At the end of the list is Congress’ power is “to make all laws which shall be necessary and proper” for exercising its authority.

According to these provisions, then, the Constitution would seem to legitimize all kinds of legislation — including, say, mandatory health insurance — that Congress might see as proper, if not necessary, for promoting the general welfare through its power to regulate interstate commerce.

“If they want to create a socialist state or they want to nationalize an industry,” Loevy said of Congress, “there’s nothing in the Constitution to stop them.”

Korkowski disagrees. Those who say this language means “the federal government can pretty much do anything,” he said, “have to ignore the rest of the document.”

He and others maintain that federal authority is restricted by the Tenth Amendment, which says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Debate has simmered for more than two centuries, but there are exactly nine people whose opinions really matter.

“The only group that has the power to answer these questions definitively is the Supreme Court,” Loevy said.

Loevy said that even though they may distort debate, wild claims about what the Constitution allows or forbids emanate from “the great admiration the American people have” for the document.

“We want what we believe in, and we desire, to be constitutional,” he said. “That’s actually a good thing.”

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