Tuesday, April 27, 2010

What Would the Founding Fathers Have Thought About Ebay?

So let's pretend that you discovered a new continent with seemingly limitless natural resources, fertile soil, and a varied climate.  It began to be populated by people from every nation, religion, and walk of life and was thus tolerant and dynamic.  Essentially, the potential for growth and progress was boundless.  And let's pretend that those people turned to you and your colleagues to establish a government that would endure and upon which they could rely for generations to come.  What would you do?

Remember that this Constitution could endure for hundreds of years and see changes in the world that you cannot possibly imagine. Would you write a short document that gave a basic framework and allowed for a variety of interpretations to fit the needs of future generations?  Would you write a document that that had some broad language but a strict interpretation to be followed by all future generations?  Would you create essentially a large volume of specific statutes to be followed for all time?  Would you be confident that your wisdom should be followed explicitly by the progeny of your generation hundreds of years down the line?  Or would you want them to be able to adapt to a changing world while holding on to a few key principles of freedom that you hold dear?

These are, in essence, the issues that America's Founding Fathers faced while creating our new nation and producing a Constitution.  For a little context, here's a real rough sketch of America in 1790, just a couple of years after the Constitutional Convention.  America had about four million inhabitants, including about 700,000 slaves.  New York City was the largest city with about 33,000 people, Philadelphia was next with about 28,000, which means that the nation was overwhelmingly rural.  Most people were self-sufficient to the extreme, meaning they produced their own food and made their own clothes and built their own houses and bred their own horses.

Items not in existence when our Constitution was written: the computer and thus the internet, the lightbulb (still more than a hundred years off), harnessed electricity of any kind, the automobile, the airplane, refrigerators and freezers, the cotton gin, plastic, the Industrial Revolution, the telephone, the ballpoint pen, television and radio, the internal combustion engine, trains . . . should I go on?  The FFs simply could not have imagined even the world of 1910, let alone the world of today.

Can you imagine writing a document that would contemplate the changes that will occur over the next couple hundred years for our pretend new nation?  Do you feel confident enough to dictate to those future people the specifics on how they should run their country?  I know I don't.

So how would the FFs have dealt with interstate highways and railways?  How would they have dealt with the internet?  How would they have dealt with the rising cost of health care?  Who cares?  Seriously, why would we possibly care what they had to say about these issues?  They could not have even fathomed them, let alone anticipated them in our Constitution.  When I hear people today go on about how important it is stick as close as possible to the original vision of the FFs I can only disagree.  They left us an amazing Constitution which lays out the most basic and cherished ideals of our nation (and some repugnant ideas which we have cast off), and I hope we cling to those forever.  But to suggest that we should use our time to decipher their inner-most thoughts about every word they wrote strains the issue, in my mind.  We should be free to use the Constitution to solve our problems today without having to rely on the opinions of men that lived over 200 years ago.

That's not to say their thoughts and opinions are not useful, they did write the thing and some of them were exceptionally brilliant, but they purposely wrote a Constitution that is broad in scope, often using vague language, and open to interpretation and reinterpretation as our needs require.

Over the next little while I want to talk about Constitutional interpretation.  I want to look at what the Constitution actually says, take a look at what the FFs thought about their magnum opus, and look at how we are treating that document today.  I hope it becomes clear that the Constitution is open to interpretation and that it is a living document that we can adapt to our own specific issues and problems.