People complain that government has become too omnipotent and has lost touch with our collective needs. Our Constitution was forged by a nation teetering at almost every turn and trying to shed the yokes of arrogant government. More than two centuries after we adopted a Constitution, our government is perhaps too secure.
Originalists demand we interpret the Constitution literally. That misses our founders’ reality entirely. While I appreciate the bright line literalism affords, it often makes no sense. In fact, the original framers of our Constitution at the Philadelphia Convention specifically stated that evolving interpretations of what they might have meant ought not dictate the course of future generations.
Consider the rights the Constitution and its amendments afford to those charged with a crime. The founding fathers remembered when British rule and its courts were considered arbitrary and capricious. The right to a grand jury, or for that matter, the right to secure counsel, afforded citizens some protection from arbitrary and oppressive government.
Now, a grand jury is considered a tool of prosecutors rather than a shield against intrusive government. On the other hand, the right to counsel is now regarded not as a right, but as an entitlement to a court-appointed lawyer, again not what the founders had in mind if we literally interpret their words.
What the framers meant was a document that offered the security a beleaguered citizenry craved — to be protected from an intrusive and arrogant government. The founders knew the citizenry did not want one imperialist and omnipotent government to replace another.
The Constitution was a delicate balance between the fears of the public and the need to forge an effective federal government that could sustain its separation from its former colonial overlord. Almost every clause in the Constitution tries to strike that balance so important in the late 18th Century for a nation not yet a generation old.