Intent-based Framework to Fulfill Original Intention

The court has been endowed with the role of interpreting the Constitution to determine the constitutionality of congressional (or executive) action. As such, it is important for the nation to have an adequate debate about how this interpretation should take place. 

With this in mind, Edwin Meese, Attorney General under Ronald Reagan, expressed his opinion that the court should interpret the Constitution based off of the founder’s intent. His views generated a debate as opponents of his view expressed their own. Such an individual was Supreme Court Justice William Brennan, Jr., who argued that the Constitution needs to be interpreted and adapted to the current trends of the day. 

Ultimately, there are grains of truth in Brennan’s arguments, but Meese’s interpretive criteria is preferable. We shall examine this by weighing Brennan and Meese’s arguments on the topics of the feasibility of the historical interpretative methodology, the purpose of the Constitution, and finally, the room for flexibility within the document.

Feasibility of Intent-Based Framework

Meese begins his analysis of the intent-based methodology by describing our ability to know the intent of the Constitutional authors. After all, the Convention is relatively recent (only 200 years), and as such, information is readily available not just on the document itself, but also on the ideas that inspired its creation. 

According to Meese, we have a number of works written by the founders, which reveal their thoughts and intentions about the Constitution and its principles. It is then clear to Meese that we can discover the meaning of the original text, and not have to rely upon our own understanding of the document.

Brennan on the other hand argues that it is arrogant to think that we could know exactly what the founders would think about contemporary issues. Indeed, the founders couldn’t have anticipated the questions of intellectual property in the world of the internet. Thus, it is simply infeasible to use an intent-based approach to Constitutional analysis.

Ultimately, the truth lies with Meese’s arguments. Since the Constitution is intended as a limit to the power of government to protect individual rights, our understanding of what the founders would do in certain political situations is not as important as our understanding of their view on individual rights. Indeed, there is plenty of opportunity for us to see where the founders sat on political autonomy.  

            

Purpose of the Constitution

That leads well into Meese’s next argument - the purpose of the Constitution is to provide a limit to the power of our federal government. It is not far for Meese to then say that if we start reading our own principles and perspectives into the Constitution rather than the intended principles, that we quickly eliminate any inherent limit or protection of individual rights within the document itself. 

To support this point, Meese cites as an example the Dred Scott decision, where Chief Justice Taney read African-Americans out of the Constitution entirely – a position which is not found within the founder’s original writings, or within the current political climate of the time. Meese argues that just like in this instance, our individual rights become threatened if the court can interpret the Constitution according to any other standard than the founder’s intent.

Brennan’s arguments all really lend support to Meese’s argument on this point. Brennan makes the case even that the Constitutional principles should change based off of the generation, but that the fundamental principles should not be changed. Unfortunately for Brennan, he does not clarify what he means as fundamental principles. 

Without such a standard, it seems only logical to assume that each individual justice would determine which principles were “fundamental.” It doesn’t take much to see that this could lead to reinterpretation of the Constitution at the will of the justices alone. But a fluid document can never serve as a limit to the federal government.  

Adaptability/Flexibility within Document

We now reach the main point of Brennan’s counter-argument, namely, the ability of the country to adapt to changing circumstances. It is Brennan’s primary contention that limiting ourselves purely within the context of the original intent of the founders will result in anachronistic decision-making. After all, the values of 1789 are quite different than they are today. 

According to Brennan, this means that an intent-based methodology would eschew social progress because we would be inevitably biased against the claims of constitutional rights. Related, Brennan believes that the court should not be deferential to the other bodies of the legislature. 

Brennan believes that the Constitution includes a discussion of substantive value choices. Thus, he believes that the court has a duty to ensure that the rights of the people are protected from the majoritarian process.

Meese believes that the Constitution’s universal language when discussing human rights is enough to limit the power of congress. Meanwhile the power given to congress allows the flexibility to regulate new industries to protect the rights of the individual. Indeed, the Constitution was written so broadly and universally that it would never become outdated by social (or technological progress). 

Ultimately, then Brennan is correct in saying that the court should not simply defer to the legislative bodies when it comes to substantive value choices and should be able to strike down laws contrary to the Constitutional views of human rights. Nonetheless, the court should still base its decisions on such issues off of Meese’s intent-based methodology.  

Intent-based Framework to Fulfill Original Intention

When it comes down to it, the Constitution is about limiting the power of the federal government. To provide a meaningful limit, we must use the founder’s original intent as an interpretative framework. Any other framework opens the door for constant fluidity within the document, which kills its ability to limit the power of government. Thus, Meese’s intent-based framework is the only one that fulfills the original goal and intent of the Constitution – to limit government.

No Mr. Nice Guy in Politics

Politics is not a very nice game. It never really has been, and probably never will be. Politicians will continue to lambast their opponents with hyperbole and accusations.

Even during the days of a more intellectual politics at America's founding, one can find some pretty biting rebukes. In the debates between the proponents of our new constitution (Federalists) and its opponents (Anti-federalists), there seems to be much shaming on both sides. 

One of the most prevalent examples of this is Anti-Federalist Paper No. 9. Written as a satire from the perspective of a proponent to the constitution, this paper details that the "author" desires the people to have a limited voice in the government, so the better suited elite can have complete control of the government. 

This agenda is allegedly evidenced throughout the entirety of the Constitution, where the republic vests power as far away from the people as possible. 

It is an argument that one would expect from an Anti-Federalist that ultimately, the Constitution would provide power less for the people, but it is totally uncalled for to accuse the Federalists of intentionally trying to essentially leave the entire population out of the process because they think they are more qualified than the public at large. 

Yet that is what Anti-Federalist Paper No. 9 directly does. It's not a very nice argument to say the least. 

My simple point is today, don't anticipate or expect that the world of politics is going to change. There will not be a sudden revival or change that produces a completely different atmosphere in this nation. Since its very beginning, our nation has been dealing with this problem, and I honestly don't think it is the Lord's will to stop the problem before He comes. Level your expectations accordingly then, as we head into midterms this November. 

Only the Carpet! An Introduction to the Social Contract Theory

When people enter into contracts, there is an expectation that the contract will be fulfilled. Yes, that's the beginning of our deep thoughts for today. But on a rather serious note, when someone says that they will clean your carpeting, you expect them to clean your carpeting. Additionally, you don't expect them to decide that what you really need is new furniture and have them take liberties with your money in order to get you that new furniture.

Contracts are truly something that give the power to a company.Contracts are written agreements or designation of power from one person to another.  No power outside the contract is within the company's control. What is obvious about this system is that people can not give away power that they themselves don't have. I cannot give you the power to use my sister's desk because I do not have power over that desk in the first place.

All of this is commonplace, of course. And you probably are waiting for me to start explaining how this relates to the social contract theory and the basis of governance. I guess I'm really predictable.

All governments as well are based on contracts. These contracts happen when entities (usually people) come together to form a government. They form these governments for specific purposes and delegate their power to the government to further specific causes. The government then has the responsibility to pursue efforts with the monies of the populace as directed in the contract.

What perhaps is the most over-looked part of these contracts is that just as I cannot sell rights to my sister's desk, people in society cannot ascribe to the government rights they themselves don't have. If you can't force your neighbour to eat his vegetables, then you can't possibly delegate power to the government to force your neighbour to eat his vegetables.

Of course, the government's contract acts like other contracts in one other area as well. It is a delegation of the powers that they can have from the people, but this contract also limits the responsibilities to just that one area of industry. Just as you would not be happy if your carpet cleaners bought you new furniture without your consent and approval, the government has no right to present or try to solve any other problems than what its contract says to do.

In the United States specifically, there are several different governmental contracts. There are state constitutions and county charters formed by the people within a given society. What makes America truly unique however is its federal contract, the United States Constitution. Agreed upon by the states within the country, the Constitution provides the basis for all federal action.

Of course, I did not sign the Constitution. No one in government alive today signed the Constitution. Indeed not one person alive today signed the Constitution! We never agreed to this contract, so doesn't that make it void for us?

This is the most common argument voiced against the social contract theory. However, a close look at other contracts shows that it is not relevant. In business, an employee is responsible to a degree to the contracts the CEO makes. Regardless of whether he himself had anything to do with the actions of ensuring a client, he has the responsibility to provide whatever services the CEO provided.

More relevantly, when a new CEO is hired, he is responsible for all of the contracts the prior CEO left him. It doesn't matter that he didn't specifically make the contract, he is still legally compelled to follow them.

Just because we never saw the specific contract and had no place in its initiation doesn't void our contract. We are in a contract with the government and have enumerated certain of our powers unto the respective governments of our nation.

But let's ensure that our carpet cleaners only clean the carpet and that our government only fulfills its purposes.

The Most Terrible Time of Year

It's the most dreadful time of the year,
With the paperwork filing
And everyone telling you, "Nothing is clear!"
It's the most terrible time of the year,
It's the droop - droopiest season of all.
With those tax experts fuming and depressing meetings
When the IRS calls
It's the droop - droopiest season of all.


So I decided to try to write a parody of a song because although I don't have the talent for music, I thought the income tax deserved this type of treatment.

Yes, tomorrow is tax day. Hopefully, you are well aware of this fact and have already filed your taxes. If not, good luck to you! The tax system is overly complex as you know, and this might create difficulty when you file your taxes.

Indeed, the tax system is greatly complex and complicated. The tax code has over 70,000 pages, there are 1.2 million paid tax preparers in the United States, and the tax system is modified at a fast pace, in recent history, the tax system has been changed at an average of two times a day.

It's no wonder that it is a pain to file taxes.  In 2000, taxpayers spent 3.2 billion hours preparing taxes for the federal government.

But the cost with dealing with our complex income tax system goes beyond some simple inconvenience. It also costs the United States taxpayers and the economy as the whole money. In 2006, taxpayers spent 265 billion dollars, not on paying their taxes specifically, but just to see how much they would have to pay.

And of course, the complexity is a hassle that businesses would rather avoid entirely. In fact, Richard T. Page explained in The Tulane Journal of International & Comparative Law in 2009,

"The former chairman of the Council of Economic Advisors has suggested that "from an income tax perspective, the United States has become one of the least attractive industrial countries in which to locate the headquarters of a multinational corporation." ... Perhaps this helps explain why the United States went from hosting eighteen of the world's twenty largest companies' headquarters in 1962 to just eight in 2008.”

But besides the impact that the complexity of our progressive income tax can have on the economy, I fear a much larger impact.

The fact is that not complying with the federal code is a crime and is punishable with fines and incarceration. Think of Al Capone. He was put in prison not for any of the crimes he committed, but because he was guilty of tax evasion.

Now I admit that if you do try to pay taxes, you likely won't be incarcerated for any mistakes that you might make. But let's not be naive. The tax code allows the opportunity for the government to reinterpret what the code means in order to punish or silence any of their critics should they deem it necessary. The power of the government should not be that strong.

Nor on a less conspiracy theory route, should the United States citizens have to fear breaking the law when they are doing their best to comply. They could very well err. Indeed, University of Law School Professor Deborah Shenk claims that almost all of taxpayers will make a mistake when filing taxes.

You could be guilty right now. Is this really a good tax system? Writing this section of this post was extremely difficult as no one understands the tax system even enough to explain how complex it is.

But complexity of our tax system is only one part of the problem with our income tax. The root cause of this problem can have a lot to do with the objectives of progressive redistribution of wealth prevalent within the system.

Economist Friedrich A. Hayek explains the history of the progressive income tax,

"As is true of many similar measures, progressive taxation has assumed its present importance as a result of having been smuggled in under false pretenses.  When at the time of the French Revolution and again during the socialist agitation preceding the revolutions of 1848 it was frankly advocated as a  means of redistributing incomes, it was decisively rejected...When, in the 1830's they came to be more widely advocated, J. R. McCulloch expressed the chief objection in the often quoted statement: "The moment you abandon the cardinal principle of exacting from all individuals the same proportion of their income or of their property, you are at sea without rudder or compass, and there is no amount of injustice and folly you may not commit."  In 1848 Karl Marx and Friedrich Engels frankly proposed "a heavy progressive or graduated income tax" as one of the  measures by which, after the first stage of the revolution, "the proletariat will use its political supremacy to wrest, by degrees, all capital from the bourgeois, to centralize all instruments of production in the hands of the state." ... But the general attitude was still well summed up in A. Thiers's statement that "proportionality is a principle, but progression is simply hateful arbitrariness,"' or John Stuart Mill's description of progression as "a mild form of robbery."

Here we have it. The big problem with our tax system today is that it is based on the same principles of redistribution of wealth that we have often seen to be problematic. It is built upon the socialist ideas.

Perhaps the worst part of the whole thing is that it doesn't even work in its proper way. Due to the complexity of the tax code and the loopholes in the system, the system does not take from the rich and give to the poor as it intends, but rather takes from the poor and gives to the rich. As Beverly Moran, Professor of Law at Vanderbilt University, explained in 2010,

"On paper, progressive rates can appear dramatic. At times, the highest marginal rate has risen to 90% of taxable income. Working solely from the statute as written, progressive rates seem ideal for downward wealth redistribution; but the dramatic appearance of rates on paper are just part of the story. Progressive rates are applied to ordinary income, including income from wages, but a lower rate applies to income from the sale of capital assets, such as stocks, bonds, and real estate. Progressive rates are more public than real because as income and wealth rises, sources of taxable income shift from wages to capital gains....The result is that, as income rises, tax rates actually fall.”

Yes indeed, such brilliance is our tax system! It has complexity and works towards redistribution, in the way opposite of intended. But it's not just a problem with the way the system is allocated now. As Chris Edwards of the Cato Institute explains,

 "The income tax is not an example of a good idea gone bad. It was bad from the beginning, and it just keeps getting worse. The income tax distorts financial planning and business investment, and it encourages tax avoidance and evasion. Because the income tax is built on an unworkable base of “income,” the law is continually changing. Let’s simplify Americans’ finances and disband the tax army by pursuing fundamental tax reform."

Get Off! The Purpose of the Federal Government

On a few occasions, I have discussed that redistribution of wealth is not a proper use of federal funds because it does not fit within the parameters of the federal government's purpose. This raises the question, what is the purpose of the federal government?

To answer this question, let's first remember the words of Ronald Reagan in his Inaugural Address in 1981,

"All of us need to be reminded that the Federal Government did not create the States; the States created the Federal Government."

Indeed, the states do not exist for the whims of the federal government; the federal government exists for the whims of the states.

This fact is seen in the Constitution first and foremost by the amount of powers enumerated to the states. The tenth amendment guarantees that all power not enumerated within the Constitution are reserved for the states or we the people.

Outside of taxes and interstate commerce, the Constitutional powers given to the federal government are entirely limited to areas of national defense. The federal government exists because a unified force of the thirteen states was stronger in foreign policy than thirteen individual states. The federal government is more like a league between thirteen (now 50) individual nations, rather than a country itself.

Yes, I really am implying that the federal government should step entirely out of domestic policy, except the laws against treason and the like necessary to protect national security. The fact is, state and county governments are better suited to address the issues within a small state than is the federal government.

The federal government is very disconnected from the US citizen and how we live. Living in D.C., they don't face the same struggles that each state economy individually struggles with, or each local economy for that matter. They are all different, and the more decentralized the government, the better suited it is to tackle the unique challenges each community brings.

This is not just true not the economy, but also of education, health care, and every other part of our lives. Of course, the people who truly understand these things are we citizens ourselves; thus, we must be just as cautious of a authoritarian state or local government as one on a federal level. But we have greater opportunity to take powers away from the state government than we do the federal government as grassroots campaigns are easier to run in one small community, rather than a conglomeration of several communities.

If we are to restore this separation of powers in the United States, we will need to put in a significant amount of effort. Some may question whether it's even worth it. After all, this seems radically conservative. Some may even call it anarchist (it's not).

Call it what you may, it is what the majority of the founders intended and for good reason. For instance, James Madison, one of those sneaky Federalists wanting a STRONGER federal government, wrote in Federalist 45,

"The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."

Who Exactly are the Founders?

What do you think of when you hear the term, "Founding fathers?" If you're like most of America, you think of the people who crafted and formed the Constitution of the United States. Obviously this is a true statement. The founding fathers as we know them today were individuals who founded this nation conceived in liberty.

It is nonsensical for us to think they all had the same ideas about what that type of a nation would look like. Nonetheless, all throughout America, we discuss and debate about what the founders thought, as if they somehow had all the same belief about every political topic.

While the founders were sure to agree on some areas, we truly know that they still disagreed from time to time. The Federalist and Anti-Federalist Papers, for instance, are articles and papers both written by founding fathers from opposing points of view about what our government should be. Weak central government vs. slightly stronger one. Articles of Confederation vs. The Constitution.

We have records of debates between our founding fathers on areas such as these. The founders are not some nebulous entity that mysteriously agrees on every area of topic. They are a group of people crafting our nation with their different views, compromising when need be to create a workable government. We should do well to remember that when we discuss the founders beliefs on government, we are talking about many, not a uniform belief.