Constitutionality has been coming up more and more in the last decade especially with ObamaCare (aka Patient Protection and Affordable Care Act of 2010) passing into law last year. While ‘unconstitutional‘ and ‘constitutional‘ keep coming up, what they actually mean has been rather absent.
Constitutionality in the modern democratic sense (republican too) has a Majority Rules/Minority Rights understanding. I’d put definition instead of understanding, but there is nothing definitive with Majority Rule as the majority, and rule, changes with the seasons. Anything can be constitutional so long as the majority has the votes, and so long as the minority is easy suppressed. It finds authority in the hands of elected rulers and entrenches itself in a very malleable Arbitrary Rule otherwise known as a ‘Living Constitution’. A ‘Living Constitution’ in effect renders nothing Unconstitutional. If so, then what is the purpose of a Constitution? This flies in the face of inalienable rights and indeed creates more privileges at the expense of universal (inalienable) rights.
Constitutionality in the classic sense is rooted in the definition that a constitution is ‘the system of fundamental principles according to which a nation, state, corporation, or the like, is governed.‘ Key phrases here are ‘fundamental principles‘ and ‘is governed‘. The principles are the mission and the governing (steering) is the method employed in reaching that mission. The mission of a Constitution cannot change in order for it to remain a Constitution, however the methods may or must change or evolve in order to keep pursuing the mission.
Now this brings up Unconstitutionality. It by definition describes things contrary to the Mission; new missions, methods, or governing. We have already seen that there is nothing unconstitutional within a ‘living constitution’, at least where the mission can be changed, since changing the Mission is itself unconstitutional. This leaves the methods or adding missions that are contrary to the original mission.
The original mission of the United States Constitution was to establish a system of government to protect the Inalienable Rights described in the Declaration of Independence and 9th Amendment. Constitutionality cannot be vague as it renders Unconstitutionality moot. I’ll end by saying it is easy to determine whether an Act is helping protect Inalienable (universal) Rights or is establishing Arbitrary Privileges. Somehow our Representatives are missing this.
The End is FAR
Steve A Morris