Dean Toda of the Colorado Springs Gazette called me not long after my last big campaign event, the Colorado Republican Central Committee Meeting in Keystone, Colorado, on September 25-26. He was writing an article on the Constitution and its current interpretation. The article, entitled “History shows Constitution can’t be taken literally,” has been published here. My intent here is not to complain about an unfair article or even to fully critique Mr. Toda’s thesis.

Rather, I want to use Mr. Toda’s article as an example of exactly how intellectually lazy journalists can be.

Mr. Toda called me because I mentioned the Constitution, the rule of law, and our need to return to respecting both. (You can see video of my comments here.) He and I chatted for quite a while about the methods of textual interpretation and, in particular, the doctrine of textualism. Now, I may not have used that word, but I did explain several times and in great detail how a “textualist” would (or should) interpret the Constitution.

In sum, a textualist always places the actual words of a document in first position when applying the text to a particular set of circumstances. When figuring out what a text means, one may rely on the circumstances of its writing and the general understanding of the words used at that time. Precedent (previous judicial decisions interpreting a particular text) are useful and should generally be respected, but if they are at odds with a proper textual reading, then they may be discarded.

Mr. Toda did not seem to understand the basics of textual interpretation (the fancy name is “hermeneutics”). Now, I just googled “textual interpretation” and found, as the first natural hit, this site. It’s a site dedicated to biblical interpretation, but as the site authors mention, the principles apply to any text, including law. They lay out many of the very simple principles that underlie any proper reading of a text.

So it’s not hard to get at least a rudimentary understanding of hermeneutics. However, Mr. Toda gives no evidence that he researched anything about textual interpretation.

One principle of textual interpretation, which I pointed out to Mr. Toda, is internal consistency. That is, unless there is evidence to the contrary, one should assume that the author of a text meant the text to be non-self-contradictory.

Consider one example:

Mr. Toda asked how my assertion that the Department of Education is unconstitutional squares with the Commerce Clause in Article I, Section 8. I explained that the Commerce Clause should be read much more narrowly than it has been by the Supreme Court in the last 70 or 80 years. I also pointed out that a reasonable reading must take the Commerce Clause much more narrowly or else the Tenth Amendment would have no purpose or meaning.

Consequently, I see no authority in the words “regulate Commerce . . . among the several States” for the creation by Congress of a Department of Education.

I said over and over in our conversation that the “Commerce Clause cannot be a grant of plenary [that is, unlimited] power to Congress.” If it were, then the Tenth Amendment, which states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” would have no meaning. If Congress has all power, then what powers could possibly be reserved to the states or to the people?

Mr. Toda does not address this problem in his article.

He does set up a straw man, however:

Some claims about what’s in the Constitution are just wrong. For example, those who argue that the federal debt is huge clearly have a point. But those who argue that it is unconstitutional do not, since the document authorizes Congress “to borrow money on the credit of the United States.”

I have never heard anyone, ever, claim that the debt is unconstitutional. Who would ever make such a claim when there is express authorization in the text for the federal government to incur debt? (See Article I, Section 8.)

What I have heard are people claiming that the things funded by such debt are unconstitutional. That claim is correct, commonplace, and easily justifiable. Mr. Toda seems to have lazily confused the two.

Further evidence of intellectual sloppiness (again, a straw man):

[T]here’s never been a consensus about the “true intent” of the framers of the Constitution, and the document has never been interpreted literally.

The country would have dissolved into anarchy if the First Amendment — “Congress shall make no law … abridging the freedom of speech” — protected libel, slander or someone “falsely shouting fire in a theater and causing a panic,” as Justice Oliver Wendell Holmes famously asserted in a 1919 case restricting free speech during wartime.

Mr. Toda seems to think that a “literal” interpretation is equivalent to a reasonable textual interpretation, which they are not.

Leaving that linguistic miscue to the side, he asserts that prohibiting a person from falsely shouting “fire” in a theater would offend a literal reading of the First Amendment. It would do no such thing.

The First Amendment prohibits Congress from making a law that would abridge the freedom of speech. Well, even an elementary understanding of rights would have led Mr. Toda to the realization that the right to speak is not absolute. Your right to speak stops when it infringes on my right to property. Your falsely shouting “fire” in a crowded theater could easily (and probably would) cause others to trample me or my stuff. That infringes on my rights. So your right to speak is limited (at the least) by my right to property.

This is not hard to understand, but it takes a little thought.

Now, Mr. Toda spent a good 30-45 minutes on the phone with me. Had he done just a little bit of reading, just a little bit of thinking, he could have written an article on the Constitution that would have improved our public discourse. That is, he could have done some journalism.

By which I mean he could have left his readers more, and not less, informed.

Greetings, Freedom Chatter readers! My name is Luke Korkowski. At David’s invitation, I plan to be posting here from time to time.

Recently I ran for federal office in Colorado.  On the campaign trail I made the point over and over again that we need to respect the rule of law.  In my mind that means that we need to adhere as closely to the text of our laws–especially our Constitution–as possible.

On that theme, listen to this question put to Speaker Pelosi by CNSNews regarding the constitutional authority for placing a mandate on individual Americans to purchase health insurance.  And the same was asked of Senator Leahy.  Both express incredulity; both are flummoxed by the question.

It seems to be a basic question that any congressman or senator should be able to answer without even thinking about it.  Either the Commerce Clause in Article I, Section 8 authorizes it, or nothing does.  If nothing authorizes an individual mandate, then the Tenth Amendment prohibits it.

Here is the Commerce Clause (read the full, official Constitution here):

The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes . . . .

That’s it.  Does anyone really believe that a cogent reading of this clause grants Congress the power to place a mandate on individual Americans to purchase health insurance?  If so, the following exchange becomes, apparently, very relevant to our national politics, especially that last line (kudos to Bill Watterson):

Calvin: I like to verb words.

Hobbes: What?

Calvin: I take nouns and adjectives and use them as verbs. Remember when “access” was a thing? Now it’s something you do. It got verbed. . . . Verbing weirds language.

Hobbes: Maybe we can eventually make language a complete impediment to understanding.