The Constitution: Still Alive and Kicking

Dahlia Lithwick, my favorite writer over at Slate (and that's saying something when the staff includes Fred Kaplan and Timothy Noah) writes online today about the premature "death" of the Constitution. She quotes some proponents of what she calls the "dead" Constitution approach (a term I like so much I'm using it from now on), but what is more commonly know as "originalism" or "strict constructionism":

Here's Jonah Goldberg on the allure of a dead Constitution: "A 'living Constitution' denies us our voice in this regard because it basically holds that whatever decisions we make—including the 13th, 14th, and 15th Amendments—can be thrown out by any five dyspeptic justices on the Supreme Court. In other words, the justices who claim the Constitution is a wild card didn't take their oath to uphold and defend the Constitution in good faith because they couldn't know what they were swearing to."

And here is Todd Gaziano from the Heritage Foundation: "If judges can essentially do whatever they want in the guise of updating the [C]onstitution … making it real for today or choosing whatever silly phrase you want, then we might as well have a completely unwritten Constitution."

Of course Scalia, the high priest of strict constructionism, has something to say about it as well in his usual understated manner:

Goldberg goes on to quote Justice Antonin Scalia's dissent in the recent Ten Commandments cases: "What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority, is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle. That is what prevents judges from ruling now this way, now that—thumbs up or thumbs down—as their personal preferences dictate."

Lithwick laments the fact that there appears to be no one today who will brazenly defend the living constitution. Well I'll take a crack at it.

First off, this debate over what kind of constitution we should have is frequently a question that's phrased through the lens of politics. Of the three people quoted above, only Scalia has some principled belief in adhering to the Constitution as the framers intended it. In general, for those on the right, this idea of a dead constitution is merely an excuse for the implementation of economic and social policies that died decades ago. For Scalia the only reason to overturn the reach of Congress under the Commerce Clause is because it's not what the Framers intended. For other conservatives though, it's merely an excuse and a means by which to reduce federal power over corporations and businesses. Their hypocrisy is evident when they start crying foul over state restrictions of corporate power, as under the constitution states have almost unregulated power over economic activity within their borders.

Hand in hand with this goes the "debate" over judicial activism, a subject that Lithwick touches on only to say that refuting criticims of judicial activism is not the same as supporting a living Constitution. That's true, but it is also true that those critical of the Supreme Court's more recent (as in anything from the 60's on) decisions on individual rights and economics have quickly seized on the judicial activism approach and linked it with originalism to make it seem like any judge who dares to rule in anything but the most politically conservative (or rather, Republican) fashion is practicing tyranny from the bench. It's a fantastic rhetorical weapon, even if it is only ever employed against seemingly liberal judges who have supposedly overstepped their bounds (conservative judges seem not to suffer this affliction in the eyes of conservative commentators.)

And yet, it is merely that...a rhetorical weapon. For the truth is the Constitution is alive and well and will be for some time. In fact the constitution, as well as our interpretation of it, is constantly changing, has always changed, and will always change for as long as this country accepts it as our guiding political force. The fact of that matter is that, even though strict constructionists wish to adhere to a interpretation of the constitution that is closer to what the Framers intended, they themselves know that not only have our interpretations changed, but that they also must change with time. The constitution as it was conceived in the 1780's is not the constitution as it exists today, because America is not the same country it was then. Conservatives know this, and even the nuttiest of the strict constructionists (Clarence Thomas) wants to roll the clock back only to 1936, and not to before the days of John Marshall. After all nobody really thinks the Supreme Court shouldn't be able to rule on the interpretation of the Constitution, even though you won't find that anywhere in the text.

Of course, the defense of "well that's just the way it is" is not a very good defense of the idea of a living Constitution. What is though, is the fact that the very authorship of the Constitution is premised on a broader and more general idea then those enshrined in print in the document intself. The Framers believed in a type of human political freedom considerably more expanded then could be found anywhere else in the world at the time. They believed in an individual freedom, and individual liberty and autonomy, whose representation came to exist in documents like the Constitution and the original Bill of Rights. That idea of an ever expanding and ever changing freedom is what lies behind the Constitution itself and it, as represented by the Constitution, is what this nation is built upon. The proof that the Framers envisioned an ever-changing freedom, an ever-changing America (though they might not have known how it would change) is that they built a Constitution that could be ever-changing as well, that could be amended to reflect the changing ideals and necessities of later Americans. They never imagined that a static document could govern a nation decades (let alone centuries) into the future, and so they did not create a static document. Certainly they would not have imagined that there would be those who, 220 years later, would parse the writings of individual framers with the intent to discover what they thought so they could declare it law. No, the Constitution is an ever-changing document becaue it was meant to be ever-changing, meant to be adaptable to the times that Americans who followed it lived in, meant to be strong enough to accomodate even the most dramatic changes in American society. Indeed, this if anything was the Framers' "original" intent.

So, don't let those strict constructionists/originalists (or "dead enders" as I think I'm going to start calling them) fool you. The Constitution IS a living document because it was created to be one. Our Constitution today mirrors our modern American spirit, and will mirror the spirit of our ancestors a hundred and two hundred years from now and whatever they happen to believe about freedom and liberty. That's what the Framers wanted, and that ideal is our nation's greatest gift to the world.