Intent of US Constitution mulled since the beginning

The United States is experiencing a crisis in health care. For two generations, the country has provided financial support for health care for some of the poor, most of the aged, members of Congress, veterans and others, all with good results, but there are millions left out facing illness and death. The Congress and president have just determined that all should be covered. The law provides that if a citizen feels it's not for him, he can opt out but he should pay a tax to support the system anyway. We can't let anyone die because they opted out.

Health care for all and other questions of social policy are hot these days because an often vociferous faction, calling itself "Originalists," charges that the principle of obedience to the original intent of the Constitution's draftsmen, including its limits on federal powers, has been betrayed.

It might surprise the reader to know that judges have been considering original intent for all of the nearly 224 years since its adoption. It's just not so easy to interpret intent with a document that old. Some of the provisions are straightforward, others ambiguous. For example, what does it mean that the Congress shall have the power "to provide for the general welfare of the United States"?

To take another example, where is it written in the Constitution that the Supreme Court has the power to throw out the acts of the people's representatives? Nowhere. If it had been originally intended, don't you think someone would have made it specific? Putting it bluntly, the first chief justice of the Supreme Court decided it would be a good idea. Justice Marshall enshrined the notion in Marbury v Madison in 1803. Maybe he was right, maybe wrong, but a precedent was established that has been respected by the courts ever since, even though it is unlikely that any great harm would come to us if Acts of Congress, signed by the president, could not be dumped by just one member of the Supreme Court, elected by nobody, breaking a four-four tie.

Sixteen years later, in McCullough v Maryland, Justice Marshall reminded us, "We must never forget that it is a constitution we are expounding."

What did he mean by that? He explained later in the opinion describing one section: "This provision is made in a constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs."

As Marshall knew, none of the Constitution's provisions could have anticipated the drastic changes that have made America unrecognizable from the perspective of an original draftsman. What would the draftsmen have thought about the allocation of radio frequencies? Hmmm.

But still, over these intervening years, public administrators and judges have worked at deriving meaning from this document, or, rather, series of documents, as amendments have been added, considering what the draftsmen might have intended. They have applied that meaning in practices and judicial decisions, supplementing their main work in interpreting and applying federal law. These decisions make up an impressive body of law that lawyers call "precedent." Precedent is normally binding in determining what the Constitution means.

The "Originalists" of 2011 want to throw out much of what generations of judges have had to say, in favor of a new interpretation of what the draftsmen thought. Originalists color themselves as conservatives, but this approach, throwing out the concept of "precedent" that has guided the thinking of all well-trained lawyers for years, reveals the Originalists as striving to make radical changes in the meaning of the Constitution so they may bring radical change to the country.

Originalists have a new social agenda for the United States disguised as the application of conservative principles.

We can have no objection to the advocacy of this social agenda. Such views can and should be vigorously expounded and debated. Maybe universal health coverage is bad for the country. But it is mischievous to pretend that the nation cannot even consider the program because fealty to originalism means the program is unconstitutional.

John Havelock is a practicing lawyer and former Alaska attorney general.

Fisherman's Choice Charters