The Constitution May Have Been Different If Men (& Women)With Different Interests Had Written It

The Constitution did not write itself; it was written by its framers who had their own interests and those of the nation in mind.

In 2018, I wrote a book, Ecosystem of Startup and SME Support. In it I examined how the US Constitution helped lay a foundation for the US Government to play a role in supporting businesses. As I was reading my book this morning, I thought that this was an auspicious time to share some of what I learned in my research for the book about the constitution and how to interpret it. (see at www.gemsofwisdomeconsulting.com/books).

Bottom line: The matter of how to interpret the constitution is complicated, but while it's always been so, it appears that today the has less capacity to to effectively leverage it to address the various complex challenges facing society today.

Originally, a key constitutional issue was how to strike the right balance between the rule of the government and the will of the people. The framers essentially came up with “6 Big Ideas” for achieving this. The “6 Big Ideas” of the U.S. Constitution Limited Government

1)?????A principle of constitutional government; a government whose powers are defined and limited by a constitution.

2)?????Republicanism- A form of government when citizens elect representatives to govern for them.

3)?Checks and Balances- A system that allows each branch of government to limit the powers of the other branches in order to prevent abuse of power.

4)??Federalism -A system in which power is divided between the national and state governments.

5)??Separation of Powers -Constitutional division of powers among the legislative, executive, and judicial branches, with the legislative branch making law, the executive applying and enforcing the law, and the judiciary interpreting the law.

6)??Popular Sovereignty -A belief that ultimate power resides in the people.

Seventy-four years after the ratification of the U.S. Constitution, it was in President Abraham Lincoln’s Gettysburg Address of 1863 that the term “by, of, and for the people” was coined. In the last lines of his address Lincoln stated the following words that captured the essence of what the founding fathers aspired to in framing the Constitution: …that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth.

Though the U.S. Constitution is the bedrock of U.S. law, its interpretations are not necessarily cast in stone. As has been explained by scholars, there are at least 13 significantly different approaches to interpreting its meaning and applicability, as follows:

?1)?????Textualism (Literalism, or Plain Meaning): Only look to the literal words of the text and consider their meaning in a manner that does not produce an absurd result.

2)?????Strict Constructionism: Like Textualism but once a clear meaning has been decided, no further analysis is required.

3)?????Precedent (Stare Decisis): The Supreme Court should look to its past decisions to decide a present case.

4)?????Logical (Mathematical): This utilizes formal reasoning to interpret the text, typically in a syllogism that proceeds from major premise to minor premise to a conclusion.

?5)?????Doctrinal: Judges hear cases to provide a forum to make broad policy pronouncements that enhance the prestige and power of the court.

6)?????Living Document (Aspirational): Views the Constitution as a contemporary text and is more concerned with providing a specific remedy than creating a general rule.

7)?????Structuralism: Structuralism looks to the overall structure of the Constitution, the internal dynamics between branches of government such as the separation of powers, the presumptive relationship of the federal and state governments, and the presumed role of the judiciary within the Constitution.

9)?????Constitution in Exile: Proponents of this view seek to limit the application of the Commerce Clause as a basis for legislation.

10)?Economic: A general economic approach today looks at the practical impact on economic activity that a decision might produce.

11)?Ethical: An ethical approach embodies concepts of justice and fairness and frequently is concerned with individual rights.

12)?Activist: Refers to judicial decisions that are more like legislation in creating public policy.

13)?Balancing: Occurs when Justices weight competing interests such as privacy versus public safety or freedom of speech versus consumer deception.

14)?Prudentialism: This approach advises a court to exercise judicial restraint, serve a limited role, only decide the case before it, and not make broad general rules for future cases.

What is your opinion? Look at 4, 6, and 11 above and ponder if these interpretations might have been used, perhaps would not have been overturned.

Now that it has been overturned, will all the children who will be born as a result be loved in society with as much fervor and commitment as the advocates in overturning it put into making sure they are born?

Sharon T. Freeman, Ph.D., President & CEO,

www.gemsofwisdomconsulting.com