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Understanding Constitutionality

  • Understanding Constitutionality

  • 25 June 2012 by 1 Comments

Understanding Constitutionality

By Richard Larsen

Published – Idaho State Journal, 06/24/12

There clearly is some misunderstanding about what is deemed constitutional and what is not. Even if one has the most stringent, literal interpretation of the governmental powers and rights enumerated in our founding legal document, the Constitution, there are a lot of changes that have been made to the literal meaning of the document over the past 223 years.

Those changes are not just in the form of Amendments, of which we have 27. They also come in the form of legislative statute and Supreme Court precedent, which have largely redefined the relationship of the average citizen to the federal government. The result is that very little that is in the Constitution is literally applied today, much to the consternation of those of us who believe in freedom and limited governmental power over the individual.

The issue emerged just this last week in an editorialized news piece by the online news source, New American, which took exception to a comment that presidential candidate Mitt Romney made to Bob Schieffer on Sunday’s Face the Nation. Romney said, “I can assure you if I’m president, the Iranians will have no question but that I will be willing to take military action if necessary to prevent them from becoming a nuclear threat to the world. I don’t believe at this stage, therefore, if I’m president that we need to have a war powers approval or special authorization for military force . The president has that capacity now.”

Actually the Constitution says precious little about the Declaration of War. Article One, Section Eight only specifies that “Congress shall have power to…declare War.” But clarifying and applying greater specificity to the wording in the Constitution, Congress passed The War Powers Act of 1973, which clarified what a “declaration of war,” is and when it’s necessary.

The War Powers Act specifies that the president must notify Congress within 48 hours of committing armed forces to military action, and forbids armed forces from remaining for more than 60 days, with an additional 30 day withdrawal period, without an authorization by Congress. So Romney is correct, that he would have 90 days to be engaged militarily (a quick strike of nuclear facilities could take one night). And he would be completely within his constitutional authority as president, as elucidated by legislative statute.

To illustrate how judicial precedent affects constitutionality of statute based on constitutionally enumerated powers, a 2001 Supreme Court ruling clarified that Congress doesn’t have to pass a literal “Declaration of War,” to authorize the president to engage in military action. The court ruled that any resolution of support, or congressional funding of the military action, is equivalent to a Declaration of War.

While the Constitution is our foundational legal document, we must remember that we’ve got nearly 223 years of legislative statute and judicial precedence that have clarified and refined the original text, whether we like it or not.

The same has happened with nearly every aspect of the Constitution. Each legislative statute and each judicial ruling, refines, redefines or reinterprets aspects of our foundational legal document. If an Act of congress passes and is signed into law, it builds upon the body of law interpreting the powers granted to them by our most cherished parchment. If such an Act is challenged through the judicial system, and is either validated or invalidated by judicial ruling, the highest jurisdictional ruling on the Act stands, thereby defining anew some aspect of our relationship with the Constitution.

We will learn this week, in all likelihood, another aspect of that relationship. The Supreme Court will release its ruling on whether the government can mandate whether citizens are required to buy certain products and services, with their ruling on Obamacare. If they rule it is constitutional for the government to force us to buy health insurance, governmental control over our lives will be fundamentally, and perhaps, irreversibly altered.

Aside from policies, personality, and whether our respective presidential candidates are “in touch with Americans,” this is the most compelling distinction between Romney and President Obama. Romney has committed to appoint justices with “strict constructionist, judicial philosophy,” and has praised Justices Roberts and Alito as characteristic of the kind of justices he would nominate. President Obama, to the contrary, has appointed two justices whose judicial disposition is antithetical to strict constitutional interpretation.

For those of us who believe the founding fathers knew precisely what they were doing in limiting governmental power in the Constitution, maintaining the slight constructionist edge on the Supreme Court is perhaps the most compelling reason to vote for Romney in November. If you believe in freedom and liberty, it is, in fact, the most compelling reason to elect, at all levels, leaders who believe we must return to the original intent of our founding documents.

AP award winning columnist Richard Larsen is President of Larsen Financial, a brokerage and financial planning firm in Pocatello, and is a graduate of Idaho State University with a BA in Political Science and History and former member of the Idaho State Journal Editorial Board.  He can be reached at

About the

More than anything, I want my readers to think. We're told what to think by the education establishment, which is then parroted by politicians from the left, and then reinforced by the mainstream media. Steeped in classical liberalism, my ideological roots are based in the Constitution and our founding documents. Armed with facts, data, and correct principles, today's conservatives can see through the liberal haze and bring clarity to any political discussion.

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