SJR No. 15: Removing the Shadows

State Senator Brian Nieves introduced SJR No. 15 on February 8, 2011. Representative Curtman has filed a similar bill in the Missouri House. SJR No. 15, simply stated, relates to state sovereignty. If passed by the legislature, it would set before the voters of the state of Missouri a constitutional amendment to the state constitution that would declare that Missouri would enforce its constitutional authority.

One particular provision of the resolution declares that the State of Missouri shall:

(3) Interpret the Constitution of the United States of America based on its language and the intent of the signers of the Constitution at the time of its passage. The several amendments shall be interpreted by their language and the intent of the congressional sponsor and co-sponsors of the amendment. Any interpretation of the Constitution based on an emerging awareness, penumbras or shadows of the Constitution, a theory of the Constitution being a "living, breathing document", or any interpretation that expands federal authority beyond the limited powers enumerated and delegated to the federal government, without an amendment to the Constitution, shall be deemed to exceed the limited powers enumerated and delegated to the federal government.

This provision highlights the problem with the condition of our present Constitutional jurisprudence in almost comical terms. Why should the Constitution of the state of Missouri refer to “penumbras” and “shadows?” Why should it refer to “living, breathing documents?” These terms are necessary because these are the terms used by the highest court in our land to characterize their authority.

The “penumbras” terminology comes from Justice William O. Douglas in his majority opinion in Griswold v. Connecticut, in which the court found the right of “privacy” within a penumbra of rights contained in the Bill of Rights. It was upon this right of “privacy” that the Supreme Court eventually precluded states from prohibiting abortions in the case of Roe v. Wade. The “penumbra” language in Griswold is ironic for at least two reasons. First, the finding of new rights within a penumbra of other rights is in complete contradiction to the very character of the Constitution. The authors of the Constitution repeatedly referred to the federal government as a government of limited powers. They memorialized this understanding in the Tenth Amendment by providing therein that powers not delegated were reserved to the states. Second, the Bill of Rights itself was intended as an expression of the inherent liberties of the states and of the people. With adoption of the penumbra language, the Supreme Court took the language of liberty and used it as a weapon against a state’s legitimate liberty in protecting the life of the unborn child.

A second irony is the use of the phrase “living, breathing document.” Written documents are intended to have a fixed meaning. Written documents are forms of communication and therefore instruments of relationship. For that reason, written documents are unlike human beings, in that when they become “living” and “breathing,” i.e. subject to every whim of interpretation, they simultaneously mean everything and nothing. They cease to fulfill their primary function and die. And if the written document is destroyed, the relationship is destroyed. Hence, if the U.S. Constitution becomes a living, breathing document, the nation is destroyed. To treat the Constitution as a dead letter is the only way to make the Constitution truly live and fulfill its purpose.

This concept of a living, breathing Constitution has resulted in a vessel of justice which is so overgrown with barnacles and crust that it is incapable of being maneuvered. Over the course of two hundred years, the Supreme Court has subjected the U.S. Constitution to numerous tests and qualifications. Congressional preemption of law under the Supremacy Clause of the Constitution can be implied in two types, each with its own test. The Supreme Court has identified three broad categories of activity that Congress may regulate under the Commerce Clause of the Constitution. One such category, those activities which “substantially affect” interstate commerce, has a four part consideration. The tediousness of these tests has gotten so bad that the recent opinion of Judge Roger Vinson in State of Florida v. United States Department of Health required several pages of discussion devoted to whether a person’s refusal to purchase health insurance was “activity.” The Commerce Clause of the Constitution simply allows Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Does such a simple provision require a system of elaborate tests and conditions? No. The tests and conditions work to obfuscate the purpose of the Constitution. What typically happens is the various tests and conditions create the parameters under which the Congress must construct an elaborate maze of laws simply to satisfy the tests and conditions. It is time to scrape off the crust of all of these tests and conditions and start again. It is time for the Court to inquire again into the purpose of the Constitution.

Judge Vinson has highlighted and challenged our Supreme Court to reconsider one aspect of its Constitutional Jurisprudence.

I appreciate the difficult situation in which the states find themselves. It is a matter of historical fact that at the time the Constitution was drafted and ratified, the Founders did not expect that the federal government would be able to provide sizeable funding to the states and, consequently, be able to exert power over the states to the extent that it currently does. To the contrary, it was expected that the federal government would have limited sources of tax and tariff revenue, and might have to be supported by the states. This reversal of roles makes any state-federal partnership somewhat precarious given the federal government’s enormous economic advantage. Some have suggested that, in the interest of federalism, the Supreme Court should revisit and reconsider its Spending Clause cases. [Citation omitted] However, unless and until that happens, the states have little recourse to remaining the very junior partner in this partnership.

In this passage, Judge Vinson has challenged the Supreme Court to scrape off the crust from the Spending Clause and return to the clause’s original intent. I applaud the Judge.

I also applaud Senator Nieves and Representative Curtman for their initiative in introducing these bills. We saw last year that the citizens of Missouri are inclined to question and challenge the federal government’s usurpation of power in passing the Missouri Healthcare Freedom Act. Senator Nieves has heard the voice of the people and is taking the next step. If we want a strong and healthy Constitution and a strong and healthy nation, we must eliminate all of the shadows and penumbras, and we must return to the original meaning of the Constitution as the founders intended.