Rebuttal: Let’s hear what the Founding Fathers have to say
I am writing this article in response to an opinion written in the ASP paper by M. Francis Mirro titled, “Stop Asking the Founding Fathers” on February 12. In his article, Mirro expresses his opinion that we as Americans should stop looking at the old and “flawed” interpretations of the constitution held by the founding fathers and instead embrace a more contemporary interpretation. Though I think Mirro hit on some interesting points, I think his analysis of what the founding fathers actually thought, was also flawed.
One of the key points that Mirro made was that the founding fathers lived in such a different time and that they couldn’t possibly account for the improvements in technology, philosophy and society in general that we have made today. He writes, “Cars, superhighways, telephones, television, manned flight and the Internet have brought the corners of the globe together, leading to new philosophies the Framers were not even capable of anticipating.”
But they absolutely did anticipate technological advancements.
In relation to commerce throughout the states, James Madison wrote in 1787 in The Federalist Papers, “Roads will everywhere be shortened, and kept in better order; accommodations for travellers will be multiplied and ameliorated; an interior navigation on our eastern side, will be opened throughout…” it seems to me that he not only understood, but hoped for the advancements we would later make.
The framers of the constitution constantly talked about the advancements that individuals could make when freedom and liberty were preserved. That was their primary goal, to preserve freedom and liberty. I would argue that not only did the framers anticipate societal advancements, but in a way, specifically allowed for them with the first ten amendments. The Bill of Rights protects us first and foremost from usurpation of government; foreign and domestic, and protects our individual liberties without which we wouldn’t have achieved the progress we have today.
Moving forward, Mirro’s claim that what the founding fathers intended “no longer has bearing on governance when the Constitution is applied today” seems a bit heavy handed for me. It completely ignores that many of the liberties that we so forgetfully enjoy today, were enumerated in the Constitution well before any of the knowledge and precedent he cited were ever realized.
One of the aspects of this article that I find particular disagreement with is it’s reference to the so called, “living constitution” and Mirro’s ideas of constitutional interpretation. I quote the late Supreme Court Justice and renowned legal scholar Antonin Scalia, “What a weird notion that a document changes its meaning, from decade to decade…”.
This philosophy, that has somehow prevailed through academia, is very problematic. It says the constitution can be reinterpreted at different times by different people, depending on their own subjective views of the present. It allows for an individual politician, or activist judge the power to change our constitution willingly when given the opportunity. Many originalist judges and scholars like Justice Scalia, find philosophies like this to be dangerous and to be the foundation for bad law. How can words just magically change their meaning over time? It seems to me that the law should be read the way it is written, and if it is an old text, then it be interpreted based on the time it was written. If the law needs to be changed and the people want it to be changed, then we do it through congress or the judiciary consistent with Article V of the constitution. That is the only way to guarantee a fair and consistent application of the law.
In closing, I believe that the constitution of the United States is one of the most precious and important documents written in the last 300 years. Though it may be flawed, it has undoubtedly sustained the longest lasting, and continuously free governments in history. Without the infinite wisdom and forethought of its framers, we may never have reached the success as a society that we have today. The words of our founding fathers should not be discounted, because without them we would be nothing.