One of the first refuges of those who support bad policies is the appeal to the United States Constitution, arguing that the Constitution supports their position or that some policy they hate is unconstitutional. Such people often use the nonsensical constitutional principle of “originialism” as sufficient evidence that a policy is valid. Something along the lines of “Well, the founding fathers never expected…” followed by the person’s preferred position stance. Most of the people who make this claims 1) haven’t read the Constitution, 20 haven’t read any of the important parts of constitutional law or scholarship of the 200+ years since the document was written and 3) haven’t read any of the founding fathers’ writings about these topics.
As far as that last one is concerned, who cares what the founding fathers said? It’s not relevant for three reasons:
1. The law is not what they said, it’s only what they passed
2. They are dead and didn’t live through any of the outgrowth of their original ideas or any of the changes to the way the world works that came after them
3. A lot of what they thought and was wrong or immoral
That last one is really the key. The founding fathers are somehow thought of as immortal men who were perfect in every way. They weren’t. They owned slaves. They treated women and children as property. They killed Native Americans in significant numbers. They thought that only the wealthy — landowners — should have the right to vote. They were not saints. They weren’t authors of the Bible and, most importantly for the present, the document they left behind to govern us — the Constitution — is NOT the Bible.
Reverence for it is misplaced. While it has great symbolic value, it was also a very flawed document. That’s why it has been formally changed 27 times (including some changes that explicitly rejected what the founding fathers said) and informally changes constantly. There is not one sentence or clause of the whole document that is perfect and there is no logic in sticking with something just because that something is what we’ve always done. The simple fact is the Constitution is a guide and it is a living and unfinished document. You can argue all you want that these things aren’t true, but you can’t find a single one of the founding fathers that ever argued that what you are saying is true. Nor is such a thing possible. Because language changes, because the world changes, because facts change, the Constitution itself has to evolve over time. Particularly as filled with compromise and vagueness as our Constitution is, it’s not possible to have one concrete meaning for almost anything in the text. Nor does the document say it should. It’s filled with loopholes and vague, open-ended phrases that allow for lots and lots of leeway. Nowhere does the document limit the federal government’s power to deal with most issues.
And those who argue that it does these things can never legitimately cite what part of the document agrees with them. Instead, they point to something that not only doesn’t agree with them, it frequently doesn’t even address the topic they suggest. And people who don’t want society to do the right thing will often hide behind their flawed, if not downright dishonest, interpretation of the Constitution.
To that I say that defense doesn’t matter to me. I deal with what is right and wrong, not what is legal or illegal. If the government and/or the Constitution say something immoral, then I’m not going to agree with them nor am I going to defer to their point of view or say that I have to because “it’s the law.” If the country is trying to help a group of people out of poverty and you don’t like it and argue that it’s unconstitutional, what you’re really saying is that you don’t want to help those people, because almost nothing is unconstitutional in terms of creating government programs. It has to be something that causes more harm than it does good for it to be something that should be opposed in such a way. Programs that “originalists” oppose never fit that pattern.
Even if their argument was valid, though, if the Constitution is the only thing in the way of us doing the right thing, then we have a duty to our country and to humanity to not let that Constitution — a flawed document written by flawed human beings — stop that right thing from happening. Unless the Constitution explicitly says the government can’t do something, then it can do that thing up to and until it is determined that the Constitution says otherwise. Explicitly. Powers are implied. Limitations aren’t. They’re specifically listed. If the Constitution says something is explicitly forbidden and we determine that what we’re trying to do is the right thing to do, then we have the duty to change the Constitution that explicitly says such a thing to make it say otherwise. The Constitution changes. It should change. The only time the Constitution should limit a change is when that change is for the worse.