Some people view the US Constitution in the same way fundamentalists view the Bible, as if it were written on stone, never changing, and can never be questioned.
These Constitutional Fundamentalists have something in common with their religious counterparts: They believe there is only one interpretation of their holy book and — here’s the amazing part — that interpretation is always exactly in line with their own personal views!
Most of us who study the Constitution for a living are aware that the Founding Fathers, though great men, were not gods. We know that the Constitution was written by politicians, who made compromises and made sections deliberately vague because that was the only way they could get the damn thing passed.
Those who “know” the intent of the Founding Fathers need to acknowledge that the only thing we can really say is that it was the intent of a majority of them to pass the Constitution as a whole, and they did not necessarily agree on what the words meant at the time. After all, within a few years, there were cases before the Supreme Court to determine its meaning and its application. The Founding Fathers themselves were still around and they could not agree! To think that there is some magical interpretation we can know today, hundreds of years later, is ridiculous.
(NOTE: This is the first real post for this blog. There is a lot more I could say on this issue; in fact, entire books have been written on this topic. However, my goal with this blog is just to throw out one basic idea per post, to stir discussion, and then to follow up on this with other similar ideas in follow-up posts. For instance, a future post will discuss whether the interpretation of the Constitution should change as society changes, so hold your comments on that issue please.)
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One of the most common pitfalls of Constitutional absolutists that I frequently see is to cherry pick additional writings of Framers that confirm their preconceived interpretation of the text. I think a danger exists in thinking that any Framer had consistent thoughts on all the issues that did not evolve over time. And like you said, it was the work if politicians meaning that what was put to paper was the work of compromise, and not necessarily reflective of any individuals unadulterated feelings on the subject.
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How anyone can look at the 3/5ths clause or who knows why we have a House (which reflects population) and a Senate (which reflects the states) and declare there are no compromises in the Constitution is beyond me! And there are other examples, too…
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Congrats on the site…Can’t wait to read you in long form.
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First of all – i love the subtitle of your blog. It seems those are the ONLY thing I ever like to talk about.
2nd – love the comparison of the Constitution and the Bible – anytime fanatics get a hold of old text – look out!
and
3. you’re got a fan!
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I am a child of both scholarly works and popular culture, and one of the best definitions I’ve heard for a living Constitution came in the movie, “With Honors”. I believe it parses well with many of the points you make in your piece here…
“The genius of the Constitution is that it can always be changed. The genius of the Constitution is that it makes no permanent rule other than its faith in the wisdom of ordinary people to govern themselves. Our founding parents were pompous, middle aged, white farmers, but they were also great men. Because they knew one thing that all great men should know–that they didn’t know everything. They knew they were going to make mistakes, but they made sure to leave a way to correct them. They didn’t think of themselves as leaders; they wanted a government of citizens, not royalty. A government of listeners not lecturers. A government that could change, not stand still. The President isn’t an elected King, no matter how many bombs he can drop because the crude Constitution doesn’t trust him. He’s a servant of the people. He’s just a bum. And the only bliss that he’s searching for is freedom and justice.”
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Great post, Mike. However, I don’t think it’s proper nor accurate to lump religion-followers and constitution-lovers together. For example, I am a constitutional conservative (I believe you should be able to say anything you want and own any gun you want) and still progressive in most areas involving personal freedoms of all sorts. (Though I don’t believe my progressive beliefs challenge the constitution at all, rather support it.)
In closing, other than amendments passed, the constitution isn’t much of a living document, nor should it be. That’s why we have legislation and regulation. However, legislation and regulation should never infringe on the rights of individuals, as enumerated in the constitution.
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I think just like how varied interpretation of religious texts can lead to a schism resulting in different sects, varied interpretations of the text of the Constitution can lead to very different schools of thought on its meaning.
For example, different interpretations of the text of the 2nd Amendment. In the case of DC v Heller :
Click to access 07-290.pdf
the Opinion dissects the text to conclude that the 2nd Amendment is an Individual right. The Dissent dissects the text to conclude that the 2nd is a Collective right.
Both readings take great care with analysis of the language and cite contemporary examples of comparison to “prove” their conclusion, yet arrive at quite opposing ends.
Now, an observer can find mountains of evidence to reinforce whichever reading they wish to follow, and can sometimes use that to justify an absolutist viewpoint which clearly does not have an absolute consensus among even the most careful and knowledgable scholars of the subject.
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Yep. This is one of the reasons why we should not try to decide what the Constitution means by looking at “founder’s intent” only — because you can usually find evidence for anything you want.
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The faculty of my law school was blessed with one of the great Constitutional scholars of his generation. When someone would go “strict constructionist” on him in a seminar, he would tilt his head, think for a moment, and then leave a smoking pit where the questioner had been standing.
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I myself have long felt that the Constitution like game rules & computer programming code, needs occasional updates to adapt/evolve with new and changing parameters over time, and should not be treated as a ‘frozen’ historical document. And its really unfortunate, that in my experience, many individuals do not seem to like the idea of having a ‘living or up-datable constitution’, and I find that very disheartening!
I’m not sure I agree with the other side of that coin though, where certain people make the proposal that we should only consider the Constitution as a historical artifact, and no longer use it as a guidebook for the US anymore, but switch to using a system of more current laws instead.
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In simple terms, the whole point of the Constitution is to protect certain individual liberties from being stepped on by the masses turned idiots/tyrants. If you want to update it, amendments can be made – it’s just very difficult to get them passed and ratified.
Other than that, the government can make additional laws and regulations, as long as they do not conflict with the liberties (and restrictions on governmental power) outlined in the Constitution.
Without such restrictions, history has shown us (in other countries, especially, without similar protections in place) that the masses will always end-up passing legislation that is oppressive to the minority, and eventually even the majority, as fear takes-over thinking, and the weak-minded population just begin to buy-in to whatever they are told by their government. (Mob-mentality ensues, and when that happens, bad people often rise to positions of power, telling the people exactly what they want to hear along the way to stay there, while perpetrating their evil on anyone that would stand against them. This is exactly how the Nazis rose to power in the 1930s. I know, everyone hates Hitler examples, but they’re so relevant!)
The Bill of Rights is a good for the people. It’s important. It protects inalienable individual freedoms from the whims of the idiot masses. Why would any good person want to further restrict those freedoms? I feel like the only people that want to mess with this stuff are those with ill intent (or foolish enough to believe that it won’t be taken advantage of by those with ill intent) because restricting individual freedoms – especially, ‘in the name of…(insert whatever)’ or as an emotional response to a recent tragedy is just plain foolish, if not outright wrong/evil.
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And I agree.
Where we disagree is whether the 2nd amendment is absolute, unlike every other amendment in the Constitution.
Gun fanatics think any regulation is prohibited, despite the fact that the 2nd amendment is the only amendment that uses the words “well-regulated.” They think we can’t stop insane people from buying guns, or that we can’t limit them in the slightest.
And then when they whine that their basic freedoms are being violated over such minor requirements, it just makes them look extreme.
The Constitution is there to protect the minority from having their rights trampled on by the majority. Doesn’t mean the minority is always right.
I am in favor of human rights — women’s rights and gay rights and other rights that affect us as human beings — rights that should apply to everyone in the world no matter what. I don’t see “the right to own a specific possession without any restrictions whatsoever” anywhere near as important.
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So you are picking and choosing what rights you like to support.
You said that you don’t see “the right to own a specific possession without any restrictions whatsoever” in reference to firearms, yet possession of firearms by the population, capable of resisting and even overthrowing a tyrannical government, is the one thing that can deter or stop those would-be oppressors from, someday, just throwing-out the rest of your beloved constitutional protections, and enforcing their will through the use of the same arms (or worse) that you would deny the average citizen.
It seems pretty obvious to me that our forefathers understood this. Otherwise, why would they include it in what they described as an enumerated list of INALIENABLE human rights in the Constitution? I think you are twisting things again – “lawyering things up” for lack of a better accusation, err, I mean explanation. You are very good at that, Mike – twisting things. If I was in trouble (on anything but a gun violation, I think) I would want you as my defense attorney. (I mean that as a genuine compliment.) I just think you are also good as using those same skills to twist political conversation to your liking, and ignore the simple and clear, because anything made complex can be argued. But, if we agree on a simple, literal definition of the rights enumerated in the Constitution, your argument would not hold water. (Which we don’t, and there is the crux of it.)
I think we are destined to disagree on this one. (And you’ve called me an extremist, when in reality I am not extreme at all. I’m just very conservative in my core constitutional beliefs. Individual liberty first. Heck, we’re completely on the same side when it comes to first amendment issues. Why do you see the second amendment so differently?)
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