Commentary

September 18

Government intervention raises constitutional questions 

DAVID I. FALLK

WITH THE recent failure of private institutions in the financial, automotive and health care industries, and subsequent government intervention, many questions have been raised concerning the powers of our government and its place in society.

As we commemorate our Constitution’s 222nd anniversary this week, a review of the great document and its amendments, therefore, seems appropriate.

History records that the purpose of the Constitutional Convention of 1787 was not, as many people believe, to create or protect individual rights, but to address the glaring weaknesses of the Articles of Confederation that had failed to provide for an effective method of governance for our new nation. What emerged from the deliberations of George Washington, James Madison, Benjamin Franklin and others was a republican form of government, meaning a representative democracy.

The idea of a stronger central government was then hotly debated, a discussion that produced the classic “Federalist Papers” authored under assumed names by Madison, Alexander Hamilton (our first Treasury secretary) and John Jay (our first Chief Justice of the Supreme Court). Those federalists’ arguments carried the day, and the nation as we now know it began in 1789.

What then are we to make of the role of the federal government under the Constitution? The best lesson is derived from the preamble, that famous introductory paragraph that states the document’s purpose. Its wording is clearly pluralistic and broad, focusing not on individuals or their rights, but on larger themes of perfecting a union, establishing justice, ensuring domestic tranquility, providing for common defense, promoting the general welfare and securing the blessings of liberty.

It might come as some surprise to learn what is not contained in the original Constitution. There is no mention of capitalism, free enterprise or of any particular economic system. There is no mention of God, Christianity or any other form of religion. To the contrary, religious tests for public office are specifically forbidden by Article VI. There is no mention of political parties or of a cabinet for the executive branch, although the president is empowered to appoint officers or heads of (unspecified) departments by Article II.

The terms “freedom,” “equality” and “privacy” are not stated. Slavery, though acknowledged, is not mentioned by name. Although various means of electing officials are set out, voting is not mentioned as a right.

Perhaps the biggest void in the original Constitution is the absence of a Bill of Rights. One reason for this omission was that such rights were deemed sufficiently protected or already were enshrined in various state constitutions. However, public opinion soon caused the proposal of 12 amendments, 10 of which were adopted as the Bill of Rights.

It is also easy to misunderstand the Bill of Rights, and many court decisions over the last two-plus centuries have wrangled with the meanings of each of the amendments.

Although the First Amendment protects the rights of speech, religion and the press, it never envisioned today’s rapidly changing means of communication, so constant review of those concepts has been required.

Perhaps the most enigmatic amendment, the Ninth Amendment, states that unspecified rights are retained “by the people.” Not long ago, the nomination of Judge Robert Bork to the Supreme Court was derailed in part by his statement that the right to privacy was not one of the unstated rights of individuals or the people. Currently, there is a lively debate as to whether the Ninth Amendment affords people the right to choose marriage partners and obtain health care services.

At the end of the Constitutional Convention, Benjamin Franklin was asked by a citizen what it had produced. Franklin replied that it was a republic “if you can keep it.” Generations of Americans have thus far managed to preserve our nation under the Constitution. Now the turn is ours.

David I. Fallk is a Scranton trial attorney and president of The Committee for Justice for All, Kingston.