Constitutional Curbs

The US Constitution is a momentous document that is recognized around the world as establishing one of the world's earliest forms of democratic governance. It was written and ratified two and a quarter centuries ago, and continues to provide the fundamental principles of our country's legal procedures. Many more recently-written constitutions of other countries have modeled themselves on the US Constitution, but have often included changes that reflect the progression of democracy in the last two centuries; while ours often appears mired in an outmoded era.

The US Constitution is a peculiar document, that was created in a particular situation, which possessed two foundational perspectives: (1) having just acquired independence from Britain, the constitution's framers were extremely wary of setting up a government that might allow a despot (a monarch) to possess inordinate power to quash individual rights, and (2) the struggle of balancing the concepts of freedom and citizen rights with a Southern economy that depended on slavery (which denied rights and freedom to millions of Africans).

Thus, the constitution became a charter that mostly describes what the federal government cannot do—rather than define what it should do. In essence, it is about negative law. It's mostly not about positive law, because it focuses on various checks on government... it literally curbs the authority of government. It's more about protecting the rights of citizens and the states. The US has always been a country that values rights and freedoms of its citizens. Americans hate to have their autonomy restricted in any way. After all, many of our first immigrants were fleeing constraints on their lives and viewed the New World as a chance to conduct themselves as they pleased. These same ideals helped spawn the French Revolution, just a few years after our revolution.

With the emphasis on freedom from government interference and one's rights, particularly in the context of the constitution's negative laws, the US Constitution is largely unconcerned with citizen welfare—such as the right to education, health care access, or even food. These welfare rights are often suspiciously regarded in the US as possessing socialistic values. Thus they are seen as privileges, which are outside the purview of government, or that even can be denied or taken away by the government. Even the Bill of Rights—which prescribes rights that the government must not abrogate—says nothing about welfare.

Only in the 1970s did the US Supreme Court come to regard welfare as a citizen right—rather than a privilege. Why did it take so long? It was largely because by then a significant portion of citizens lived in urban environments, rather on the farm—where they had once owned land... that was their property. While property has always been considered a basic right in the US (a fundamental tenet of capitalism), 20^th century landless Americans needed welfare to survive (having no longer held property), so welfare became their new right. Yet socialism remains a disfavored form of government.

Next time: a more troublesome feature of the US Constitution…