Dear Mr. Frederikson,

I read your inquiry on the lawyers mailing list, and since
the questions that you address have been of interest to me
for many years, I would like to take this opportunity to
think about them again, because I find that my writing is better,
or should I say less bad, when it it stimulated by the illusion
that someone like yourself might be interested in what I have
to say. I should be surprised if you received much help from
the lawyers, but if I am wrong, please forward me a copy of
what you learn from them.

I myself am not a lawyer. I started out wanting to be a musician,
then a physicist; but since my native talents did not suffice,
I studied philosophy, history and literature. I went to medical
school and became an ophthalmologist. The Harvard Law School Library
is about two thousand feet south of my office, and over the years
I have spent many hours there, reading statutes and decisions,
and pondering just such questions as the ones which you pose.

If I understand you correctly, you raise two questions.
1. What meanings did the founding fathers intend to express when
they wrote the Constitution. That is an issue of history, which you
are probably far better qualified to answer than am I, although
I am brash enough to offer some suggestions. 
2. How do we interpret the oaths of all our government officers
to "uphold and defend the Constitution of the United States,"
when these United States have burgeoned from a small chain of
maritime  colonies with at most a few hundred thousand largely
Anglo-Saxon inhabitants,  you know the numbers better than I, 
into to a superpower of two hundred million people or more,
whose citizens represent virtually all the races and religions
of our earth.

My answer is that the founding fathers intended the Constitution
to be a permanent edifice. They had a long view of history,
borrowing as they did the model of the mixed constitution
with its division into an executive, legislative and judicial
branch from the Greeks. But they also anticipated the need
of this Constitution to be adapted to changing social, political,
and economic circumstances. Hence they made provision for formal
amendments. Since it was then as now impossible for legislators
to anticipate all situations in which the laws might become
applicable, the founding fathers also made provision for the
judicial interpretation of our laws, including the Constitution.
I would argue that if the Constitution is meaningless without
interpretation, and if the Constitution was intended to be subject
to amendment, then interpretation as an integral part of the
Constitution is similarly subject to amendment. q.e.d.
The founding fathers were a practical bunch, and they understood
very well that a twenty-five year old can only treasure as an
heirloom the clothes he wore as a toddler, he can't wear them
to the office. If they had really believed that history was static,
they would have imported a European princeling and hired some
Philadelphia goldsmith to put a crown on his head. Mr. Dooley
was right when he said that the Supreme Court follows the elections.
It should. Heaven help us if it didn't.

If I interpret your letter correctly, its animus is political.
You don't like big government, you think there should be a law
against it, and think you might have found it in the Constitution.
I don't think the Constitution prohibits the kind of governmental
involvement to which you object.  Furthermore your objection
is addressed only to the bigness of the federal government. 
Except insofar as the 14th amendment applies the Bill of Rights
to the states, the Constitution does not restrict the power of
state governments within their borders; and if you care for a
taste of big state government, come pay us a visit in Massachusetts.

I don't like big, intrusive government either, but I consider it
a consequence of population density and technology, a consequence
which is probably largely unavoidable. I know of places in northern
Alberta where I can build a cabin ten miles from my nearest neighbor,
and no one will bother me. No Health Care Financing Administration,
no Internal Revenue Service, no Zoning Board, no Building Inspector.
But there's also no internet, no electric power, no telephone, no books,
no library, no school for my grandchildren, no computer, no ophthalmology
practice ...  I probably wouldn't survive, and if I did, I would spend
all my time securing my food clothing and shelter.

Ultimately, I think our society will have to undergo radical change.
No civilization is permanent. Babylon, Egypt, Greece and Rome didn't
last. The Holy Roman Empire was good for a few hundred years. Hitler's
thousand year Reich lasted only twelve. If we continue to neglect and
destroy our children and offer them a future of nothing but longer
prison terms, ours isn't going to last much longer. I don't think
there is a solution for our problem, yours and mine. I fear that
totalitarianism may be an unavoidable concomitant of mass culture,
and that the worst is yet to come. I hope that I am wrong and I wish
you a very happy New Year, with as little government as possible.

==================================================================

From KFREDSON@delphi.com Tue Dec 27 17:53:54 1994
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Date: Tue, 27 Dec 1994 20:54:08 -0500 (EST)
Subject: Re: Help with the Constitution
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Dear Ernest Meyer,

I very much appreciated receiving your very thought-provoking reply. Many
thanks for taking the time to address this.

There have, in fact, been a few attorneys who have "nibbled" at my post. I
am hoping that people will be able to point me to specific historical facts,
documents, court decisions, etc., that trace the change to a more "liberal"
construction of the Constitution.

My own mind is certainly not made up on the matter, although I find myself
sympathizing less and less with government from on high. Social engineering
on the federal and state levels alike does not seem to have been
particularly effective.

But I do wonder whether or not there is a debate here which could be
fruitful for high school students? Such debates (I lead them into a debate
between loyalist and patriots in 1776, for instance) are helpful not only to
raise key or neglected issues but also to make the learning experience more
vivid and memorable, along with allowing for their thinking to
occasionally take wing.

So, staying at the level of the federal government for the moment, is it
really a good thing for the Supreme Court to pay attention to the voters,
that is, the majority of the moment? Why not go through the process of
amendment, while in the meantime leaving it up to the states?

What about federal aid to local education (strings attached) or to state
transportation (strings attached in the form of 55mph)? Doesn't this lead in
the end to so much resentment that we end up with nine states voting to
invoke tenth amendment, or to so much dependence on Washington that voters
lose interest in their local or state governments? Is centralization so
crucial that we need to twist the constitution to our own momentary needs?
And if centralization is desired, why not amend the constitution in those
circumstances?

Now, as you point out, Massachusetts has done a fine job of building up big
government quite on its own. But I can choose to live somewhere else,
unless, of course, the other states are fed so much big government by
Washington, willingly or unwillingly, that they are largely
indistinguishable.

Believe me, my mind is not made up on this matter. But the words I cited
from  Washington's Farewell Address still ring in me. What do _you_ think?
Is it at least a worthwhile discussion, one that is left out of the chapters
we all read concerning the presidency of FDR? Until a couple months ago,
when this was first brought to my attention, I would never have considered
including it; now I am wondering whether I am doing a fair job if I don't at
least raise the issue.

Again, many thanks for taking the time to reply. I would love to hear from
you again on this matter.

Best wishes,
Karl Fredrickson
<kfredson@delphi.com>

=================================================================================

Dear Karl Fredrickson,
.PP
.fi
.na
Thank you for replying to my letter and giving me
the opportunity of acknowledging some of my mistakes. 
The first of these is that, instead of directly to you,
I inadvertently addressed my letter to the lawyers list,
some of whose readers are likely to have been annoyed by it
as an irrelevant distraction from their pursuit of clients
and cases.
.PP
.na
My second, and more serious failing was my failure to
respond to your thoughtful collation of legal arguments.
I neglected to do so, not, I would like to think from rudeness,
but from my lack of time to look up the precedents you cited,
to reread the Federalist papers, and for that matter the Constitution
itself. I am fundamentally very conscientious in such matters,
but I am sure that I am not the first student who told you
that he just did not have time to do his homework. 
.PP
.na
A more cogent reason for my failure to address the substance
of your legal arguments, is that it has been a long time since
I have taken any legal argument, especially if it appears in a
Supreme Court decision, at face value. I have come to view not only
that court, but the entire legal system as political theatre
and I would no more analyse a judicial opinion for its conceptual
content than I would clamber up on the stage after the performance
to get a closer look at the geography of Elsinore or Dunsinane.
The lawyers know this. They aren't taught it in law school,
but they learn it in practice. They have become members of the cast
and they must keep up the pretense if they are to survive in their
profession.
.PP
.na
Our legal system is intelligible to me only as an edifice of fiction
and fantasy which might make Shakespeare or Marlowe green with envy.
Our judges are the actors whose task it is to convince their
grade school audience that everything is hunky dory in Disney Land
and that their denial of certiorari in U.S. v. Jesus of Nazareth
was nothing more than an inadvertent slip-up. How would you feel
if you were in court, and the judge formally approved the payment
of half a million dollars to your adversary as a bribe for his
testimony against you? And how would your predicament differ from
that of a defendant in a criminal case who was convicted on the
plea bargain testimony of a purported accomplice whose life had
been spared, or who had obtained his freedom in exchange for his
perjured testimony against you?  I cannot reconcile myself with
the privilege of government attorneys to exercise prosecutorial
discretion in bringing or failing to bring criminal charges as
they see fit.
I see that as a fundamental denial of due process, a government
by men rather than by laws.  Not that I would want to see even
more individuals imprisoned, but that many if not most of our
criminal laws would fall by the wayside if they had to be
rigorously and systematically enforced.
That is why I cannot take the logic of our judicial system seriously.
.PP
.na
Turning once more to the proper interpretation of the Constitution
which we discussed, I would like to suggest a simple, quite formal
criterion of constructions that are permissible and those that are not.
Certainly, the founding fathers could have made the Constitution
as explicit as they saw fit. In the way of environmental protection,
they could have included in it the permissible size of every dung heap 
in Pennsylvania. They left many important issues undefined,
and deliberately so.
The constitution which they bequeathed to us was a document
remarkably free of their parochial prejudices.
Of course, we are at liberty now, as an exercise in historical analysis,
to look to their writings, to their political opinions to ascertain
how they might have interpreted our Constitution.  But isn't it illogical
for us, under the pretext of being true to their intentions,
to bind the Constitution to their political opinions,
when they deliberately chose *not* to do so.
When we limit the Constitution to the interpretations
which we impute to the founding fathers,
we destroy the constitution which they wrote,
because that constitution is *not* limited to such interpretations.
The politicians, therefore, who profess allegiance
to a purportedly "original" document limited by
the interpretations which they ascribe to the founding fathers
are peddling a counterfeit, and are
trying to persuade us to buy a cheap
imitation that happens to satisfy the reactionary wishes
of their constituents.
The founding fathers chose to make the constitution non-specific
not because they lacked the wits to interpret it,
but because they deemed it inadvisable to limit
the Constitution to any present parochial interest.
The genuine Constitution was not intended to shackle us
to the past, but was designed as a mirror
to reflect the integrity, the courage, and the generosity
of each succeeding generation.
.PP
.na
The examples of the 55 m.p.h speed limit and the aid to education
with strings attached which you cite as problematic intrusions of
the federal government into state affairs, seem to me to be well
chosen. I shall consider them in turn. In 1942, the speed limit
was reduced to 35 m.p.h to save rubber and gasoline? If so, should
other phases of the war effort have been regionalized?  Should Texas
have sent its own expeditionary forces to Italy and France? In 1974,
the speed limit was reduced to 35 m.p.h. to save gasoline. There was
no war, but there was a fuel crisis. Should states have been free to set
their own speed limits, to control prices and allocation of gasoline
within their borders, to prohibit the export of precious gasoline
beyond state lines?
.PP
.na
The Germans believe that the unlimited speeds on their Autobahnen
have contributed significantly to the destruction of their forests
from pollutants. I can't prove it, but it seems plausible to me.
If polluted air from New Jersey, which for purposes of argument
shall have only a "reasonable and proper" speed limit, drifts north
and destroys the vegetation of the Hudson Valley, shall New York
be entitled to damages from New Jersey, and in default, be permitted
to annex the Palisades, if necessary by force?  Or, if 25 of the fifty
states have no speed limit, and their citizens incur medical expenses for
automobile injuries at the rate twice that of the other twenty-five states,
shall the slow states subsidize the fast ones? And if a uniform 55 mile
an hour speed limit is oppressive to the states,
isn't the dictation by federal authorities of the location of
highways, the taking of farmland by eminent domain
at federal behest even more objectionable? Perhaps there
should be no interstate highway system. For at least ten years,
Route 3, a four lane highway running north from Boston,
ended ignominiously in a field at the New Hampshire border,
because that state refused to construct the highway on its side
of the boundary.
.PP
.na
As minds are more important than cars, so the issue of federal
guidelines for education are proportionately more important.
The New York Times editorialized yesterday to the effect that
new class divisions were arising in this country, because of differences
in education, specifically, differences in technological expertise
which was required to obtain employment now and in the forseeable
future. If education is controlled entirely at state level, 
some states will graduate lots of football players and drum majorettes
well-trained in the intelligent design theory of creation.
Other states will graduate lots of students proficient in making
mathematical computer models of the galaxies that constitute the Milky Way.
Since there are more positions for computer engineers available than for
talk show hosts, the unemployment benefits for the one state will be
much higher than those for the other state. How will the resulting
inequalities be compensated? May each of the wealthy states set up
its own immigration and naturalization service, to keep out the
jobless from the other states? Are we one nation? or shall we try
secession once more?
.PP
.na
I have addressed the issues which you broached.
There is more, much more to be considered concerning
the necessary role of government and the necessary restraints
upon it to make life tolerable. I wish I had time now
to explore these matters, but other duties constrain me
to stop, to thank you for your indulgence, and to send
you my very best wishes for the New Year.
.nf

                                       Ernst Meyer