There is an immutable fact about history – if you weren’t there, if you didn’t personally know and speak to the history makers, you can have no irrefutable, complete evidence of their intent. You can know concrete things, like dates. You can read treatises written by the historical participants and get some insight into what they were thinking. “Experts” can fill in some blanks. But at some level you can’t know, beyond a shadow of doubt, everything they thought, and more importantly, why.
Thomas Paine’s oft-cited Federalist Papers are a case-in-point. Constitutional fundamentalists often look at them as the end all and be all of all things Thomas Paine. We can verify many things Paine did and we can infer some intent from his writings, but the papers are only our best insight into the mind of Thomas Paine, not everything the man believed or how he dealt with those beliefs. Inference depends as much upon the reader as the writer, not unlike a fundamentalist’s view of the Bible.
I personally believe in the notion that the Constitution is a beautifully malleable document meant to live and grow and evolve as history waxes and wanes. I think that we should adhere to it as closely as possible, but I also think it is folly to apply 18th century societal norms and thought to a 21st century world. We are not the same citizens and this is not Philadelphia circa 1776.
Of course, I can’t irrefutably say that without a shadow of a doubt because Paine, Jefferson, and Washington weren’t my BFFs and available for an entertaining political debate over dinner. I can only speak to the here and now.
The argument is doubly clouded when ideologues pick and choose historical evidence. For example, proponents of corporate personhood often forget that interpretation wasn’t explicitly contained in the Constitution. Corporate personhood was the invention of an “activist” Civil War era Supreme Court decision. My opinion is that it was a bad decision then and a bad decision now, but I can no more point to an amendment saying it is bad any more than a CEO or Supreme can point to it and say it’s swell. The difference is that I don’t get a vote. I’m not a Supreme and I don’t have the money to successfully argue the point. It’s galling, especially since one of the reasons the corporate personages have the money is because my rights as a flesh and bone citizen are subservient to theirs.
Likewise, opponents of mandated health care like to say that compelling citizens to buy specific things has never happened in America. However, there are cases of just that sort of behavior in our past, behavior that isn’t explained in the Federalist Papers or other writings.
In the late 1700s, Congress passed laws requiring ship owners to buy medical insurance for their seamen, force “able-bodied men” to buy a gun, and require seamen to buy medical insurance for themselves. All were signed by Constitutional framers.
Even today, localities may require residents of a neighborhood to partially pay for the installation of water and sewer lines because the majority of the neighborhood’s residents have voted to have them installed. To do otherwise, would allow those who didn’t want to pay to put the entire burden of that infrastructure improvement on their neighbors, even as they can use it.
The debate about health care isn’t so much a Constitutional debate as a societal one. Should the government be able to act in support of the greater good or find itself constrained by 18th century thought, word, and deed? I think the framers would understand and take the route of the greater good. But you can’t prove the opposite any more than I can prove they would.
History is funny that way.
Cross posted at The Omnipotent Poobah Speaks!