The Constitutional conundrum

Most conservatives express support for a strict constructionist interpretation of the Constitution. That is, they feel that judges should be constrained by the original intent of the framers in their interpretation of the Constitution; judges should not "make law," but simply render judgments based on a narrow reading of the document. Conservatives contend that "activist" (also known as liberal) judges are too eager to bend the Constitution to suit their own ideological bias, and as a consequence dangerously enhance the breadth and scope of the Constitution.

This argument has a certain appeal and logic to it. For if the Constitution were to mean anything, it must be interpreted and applied in a manner that is consistent with the powers the people gave to the federal and state governments when the they replaced the ineffective Articles of Confederation.

The question, of course, is what did the framers have in mind? The answer provided by Northwestern University Professor of History Gary Wills' new work, A Necessary Evil, may surprise you. Wills debunks several modern myths that have come to be received as unquestioned "truths" about the Constitution. Wills refers to the specific language of the Constitution and the Federalist Papers, which were also principally crafted by James Madison.

For example, Wills makes it clear that the states were not "sovereign powers" that forfeited some of their "sovereignty" in order to create a federal government. As Abraham Lincoln noted, "The original [states] passed into the Union even before they had cast off their British colonial independence." In reality, the states' individual survival depended on their collective unity. The original states declared their independence jointly. States that joined the Union later came from, what Lincoln called, a "condition of dependence" on the Union. Lincoln adds that even temporarily independent Texas was not considered a state when it joined the Union.

Local government does not govern "best." Reagan conservatives would have us believe that government at the local level is more responsive to the needs of the local people. However, local government proponents tend to forget the civil rights movement and how much "good" local governments did for residents of places like Montgomery or Selma, Ala. The framers did not wish to create an inefficient government, but rather labored to replace an inefficient government-the government under the Articles of Confederation-with an efficient one; they wanted a government that worked. The preamble phrase "to form a more perfect union" refers to creating a government that has all the necessary parts: judicial and executive branches in addition to a legislative one. The Articles worked poorly in part because there was one sole branch, the legislature. Our government was not meant to be divided against itself. Instead, it was divided in order to maintain liberty and work expediently.

Term limits on federal office holders were not part of the Constitution in large measure because term limits worked disastrously under the Articles of Confederation. The Articles of Confederation provided for term limits and ended up with bickering, second-guessing and a body of legislators that had nothing invested in their government.

The words "to bear arms" in the Second Amendment refer to all the weapons needed to wage war, and therefore the "right" can only be understood as it is applied to militias-now known as the national guard. It does not speak to an individual's right to own a weapon. Furthermore, the myth of the American Revolution being won by teams of civilian minutemen is completely untrue. Most state militias and bands of minutemen barely had enough weapons and ammunition to enter a battle, let alone a war. State militias were unorganized and unprepared.

What would such an understanding imply for a modern issue like gun control? It may mean that advocates of unrestricted access to guns should tread lightly in any future challenge to the constitutionality of gun control legislation. For if the judges do their homework-as Wills has-then it is quite possible that they will have to conclude that there is no constitutional right to own a gun. If the leaders of the National Rifle Association (who love to wrap themselves in the flag and the Constitution) read A Necessary Evil, they may want to drop the Constitution from their wardrobe as it provides so little cover.