A Land With Two Constitutions

America finds herself at a moment of national clarity after a year of unprecedented increases in government control of American life, commerce, and society. Although quietly on this path for many years it is now apparent that the country has two constitutions. One is the familiar one school children learn about that embodies quaint concepts such as enumerated powers, limited government, and equality. This traditional version is the “written” Constitution. The other is an unwritten one built over the years by a series of unchallenged usurpations, legislative oversteps, and overly broad court decisions. It embodies a “two wrongs make a right” mindset which holds that whatever was done before can be done again and further; this form of precedent prohibits the legality of such repeated measures from even being confronted or questioned. This is the “modern” constitution.

The central problem is that most Americans believe that their elected officials uphold the “written” version. After all, every member of Congress and the President takes such an oath. As American citizens are generally law-abiding “play-by-the-rules” people, they assume their elected representatives behave likewise. That is, elected officials are duty-bound to follow the rules and purpose to fulfill their oath to the Constitution. In actuality, the politicians symbolically wrap themselves in the original Constitution (as with the flag, holidays, mom and apple pie, and other icons) but they legislate under and follow only the “modern” version. They freely apply the latitude afforded there to use the tax-code, earmarks, and other legislation to create winners and losers from any desired segment of the political landscape. Failure to acknowledge, much less resolve, the differences between the two constitutions explains much of the public disapproval of Congress.

Those satisfied with this constitutional shift claim that the Supreme Court is the final arbiter of constitutional matters when that responsibility is more accurately seen as shared by all three branches (else the idea of co-equal branches loses all meaning). This false notion of conferring constitutional compliance duties upon the Supreme Court alone unwisely allows the other two branches a free hand at unrestrained legislative mischief.

Evidence of the grip this “modern” constitution has on our national discourse and on the legislative process in particular was in the absence of discussion establishing the constitutional basis for the recent health care bill despite it's unprecedented size and universal scope. Three areas of focus illuminate the differences between these two constitutions and demonstrate that in both policy and process the “written” form is virtually no more.

The Commerce Clause wording “To regulate Commerce among the States“ has been so stretched in the modern interpretation as to allow essentially any action that Congress takes. If the Commerce Clause is sufficient to justify the health care bill, then it is equally sufficient to allow any national program of any scope. But that conclusion denies the Constitution any practical ability to limit or constrain the federal government - surely an outcome the Framers would oppose.

The Origination Rule states that all bills that raise revenue must originate in the House of Representatives. In the House in 1872, James A.Garfield (who previously argued cases before the Supreme Court and who would later become the 20^th President of the United States) said this:

“I do not deny their [the Senate’s] right to send back a bill of a thousand pages as an amendment to our two lines. But I do insist that their thousand pages must be on the subject matter of our bill.”

Contrary to this stated understanding of the rule, the health care law began as a non-revenue raising House bill unrelated to health care entitled “The Service Members Home Ownership Tax Act of 2009.” After House passage, the Senate completely replaced the two-page bill the Senate received with a 2000+ page health care version. The legislation passed the Senate, then the House, and then became law. Yet the final bill did not originate in the House, only it's number (HR 3590) ever existed in the House.

The Supreme Court has a convention that they don't look “behind” a bill to see that revenue measures are introduced in the House. The Court has a “presumption” that the Congress will police itself. The Court wishes to avoid the civil distastefulness that follows from having unelected Justices overturn presumably constitutional actions by an elected congress.

The claim that health care was passed constitutionally as regards it's origination means only that the Supreme Court likely won't overturn it on this basis but ignores that the Court only looks at the bill number. Without applying a modern interpretation to claim it's legality, the House improperly passed the “replacement” Senate bill and chose to sacrifice constitutional responsibilities on the alter of policy goals.

Equal Justice under the law is a fundamental thread through the American civil experience. The bedrock principle “that all men are created equal” infuses the country and her people. This equal opportunity or chance to succeed motivates citizen and immigrant alike. Yet this idea of equality and uniformity of treatment toward her people by government has largely been expunged from the “modern” constitution. The health care bill (like other legislation) contains numerous examples of treating states, groups, industries, and individuals differently. It's all OK by the “modern” constitution.

In summary, the “modern” constitution essentially allows Congress to pass any law, tax and control any narrow segment of commerce, and to regulate any aspect of American life. The most celebrated and revered political document in history (our “written” Constitution) has in practice been set aside in favor of it's “modern” twin. What can be done?

To correct the constitutional “double-vision” the country suffers it seems necessary to insist Congress engage in a constitutional authority debate on every bill they consider in order to reconcile them to the 'written' Constitution. This discussion intentionally ignores the policy aspects of a measure but focuses on why the Constitution allows it. In this way the glaring differences between the “written” Constitution and the “modern” one could be considered and addressed. When a legislative action can be argued to meet the letter of the law but fails to fulfil the spirit of the law then such an action should not be enacted.