May We Be Foolish?: Looking at the Constitution with Fresh Eyes

When it comes to the US Constitution, contrary to the famous Steve Jobs quotation, “Stay hungry, stay foolish” it seems that America is resigned to a generally broad interpretation of the document. We are foolish, but not in the way Jobs was suggesting—we are foolishly uncritical of the way the Constitution has been interpreted and applied to law. In America’s Constitution Akhil Reed Amar brings to light just how narrow some of the current interpretations of the Constitution are and how a broader interpretation could be beneficial to the US both within a foreign and domestic context.

It seems intuitively wise, when attempting to apply a document that is 226 years old to law and government in a modern world, to “tread lightly” but that light step should not be at the cost of thoughtful consideration of the benefits of seemingly unconventional interpretations. When in comes to the US Constitution, parts of Section 8 and the spirit behind which some of the economic regulations were set forth deserve to be given a second look. Amar first points out the “Commerce Clause”: “power to regulate Commerce with foreign Nations, and among the several Sates, and with the Indian Tribes”. Amar writes, “modern lawyers and judges typically refer to these words as the ‘commerce clause’ and today’s Supreme Court has moved toward reading the paragraph as applicable only to economic interactions” (107). Amar also includes a note that cites several articles discussing the scope of the commerce clause but concludes that “none of these interpretations comes to grips with the basic inadequacy of a purely economic reading of ‘commerce’” (542) Not surprisingly, Amar is correct. Which should cause one to question if whether or not the current interpretation of Section 8 is too narrow, and if this narrow interpretation is being set forth because a sense of fear or an unwillingness to exert resources or energy.  As Amar states, “a broader reading of ‘Commerce’ in this clause would seem to make better sense of the framers’ general goals by enabling Congress to regulate all interactions (and altercations) with foreign nations and Indian tribes—interactions that, if improperly handled by a single state acting on its own might lead to needless wars or otherwise compromise the interests of sister states.” (107) In a modern context, some parts of this broad interpretation would not make sense. For example, California, by itself probably would not be able to start a conflict with a foreign state that would reach the level of war unchecked. However, the idea that this clause, under a broader interpretation,  gives Congress the power to regulate all interactions and altercations with foreign nations is strikingly relevant. For example, regarding the conflict in Syria, this clause, under a broad interpretation would give Congress the power to regulate a potential altercation “that might lead to needless wars or otherwise compromise the interests” of the nation. But without a broad interpretation, “it is not entirely clear whence the federal government would derive its needed power to deal with the noneconomic international incidents” (108) The merit of this broader interpretation must be considered, especially since the rest of Clause 8 goes on to discuss matters that are clearly related, especially under this broader reading, such as “issues of war, armies, navies and militias.” (108) These topics are not directly related to “commerce” and economic issues, but rather diplomatic and relations issues. Like many of the documents written by the Founding Fathers that started at the roots of the country and now serve as pillars of our government, one must consider the spirit behind what was written and recognize that it is not always prudent to neither take literally what was set forth nor confine the words to too specific of an interpretation. With this in mind, the economic standards that were “sketched out in Jay/Publius’s Federalist No. 2”(108) are prime examples of the need to take the spirit of the words and apply them to a modern context.

“Uniform bankruptcy rules would stabilize interstate lending practices and spur a national market in negotiable instruments, just as continental standards for copyrights and patents would create a broad New World market for authors and inventors. Standard weights and measures, federal post offices and post roads, a continental money supply alongside uniform regulations of foreign currency—all these would help knit far-flung Americans together, economically and socially” (108)

With a consideration of the merits of a free market, the spirit behind the economic standards described in Federalist No.2 is the presence of some regulation from the government. Is a free market really “free” if there are regulations? It is perhaps, not. Did deregulations pull the country into a downward economic spiral, leading to a recession? Perhaps, yes. The point is not to attempt to “point a finger” at any one factor that contributed to the current economic failings of the country but to rather call attention to the spirit with which the men who wrote the documents that the country was founded upon—and let that influence the way the words are applied to the law.