Stealing the Constitution
The most important truth about the Constitution is this: it was written as a set of rules by which living people could solve their own problems, not as a "dead hand" restricting their options. Strikingly many important questions, from the nature of the Supreme Court to the composition of the cabinet, are left to Congress. There's ample evidence in the text that the framers didn't think of themselves as peering into the future and settling all questions; instead, they wrote a document that in essence says, "Work it out."
These conclusions come from a careful reading of the Constitution, not from some hazy idea of a "living Constitution." The "living Constitution" is a whipping boy of the right. Progressives supposedly believe, in Ron Paul's words, that "government may unilaterally change the terms of its contract with the American people." Right-wing historian Kevin Gutzman writes that Supreme Court justices use the "myth of a living Constitution" to "write their own views into law on some of the most contentious issues of our day."
This "debate" is a mystification. The far right views the Constitution as something like the "killing jar" scientists use to preserve butterflies, freezing the country under glass, preventing social change and stripping the democratic process of its effectiveness. The issue in constitutional interpretation is not whether the Constitution is a living document; it is whether the United States is a living nation.
That simple reality is often obscured by conservatives' claim that they, and only they, follow the framers' "original intent." Originalism, writes scholar David Forte in The Heritage Guide to the Constitution, "implies that those who make, interpret, and enforce the law ought to be guided by the meaning of the United States Constitution—the supreme law of the land—as it was originally written." Who could be against that? Nobody, Forte writes, except those who believe that the Constitution has "no fixed meaning."
This notion—that there is somehow a fixed, binding, single intent hidden in a each phrase of the Constitution—confuses the Constitution with the Bible. The idea of a single, literal, intended meaning of a biblical text gained primacy during the Reformation. The religious historian Jaroslav Pelikan sees in early Protestant theology the origins of American constitutional discourse. Luther and the other Reformers believed that "Scripture had to be not interpreted but delivered from interpretations to speak for itself." What mattered to Luther was "the original intent and sensus literalis [literal meaning]" of the words of the Bible.
The general Protestant notion of "original intent" was elaborated a century ago, when a group of American evangelical Christians published a set of essays on "the fundamentals" of Christian belief. In large part, fundamentalism was a revolt against "higher criticism"—scholarship that studied the Bible like any other literary work in history. Rejecting this approach, fundamentalists believed that the Bible is the literal word of God; all parts of it are created directly by the breath of God into the human soul. The inspiration is not general but verbal—God has fixed not just the ideas in the Bible but the very words in which they were written. Thus every word has a fixed meaning, immune from question by history; and all the words fit together into one divine whole. This "true" meaning must be zealously guarded against corrupt worldly forces—the "higher critics"—seeking to contaminate it with modern, un-Christian ideas.
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So influential has biblical fundamentalism been in this country that these attitudes are now cultural rather than specifically religious values. In fact, "originalists" have an enemy just as the fundamentalists did. Like the "higher critics," the supposed advocates of the "living Constitution" are smooth-talking "elite" deceivers who want to replace the good old Constitution with their personal views.
But that's one of the right's biggest lies. "We are all federalists, we are all republicans," Thomas Jefferson said in his first inaugural address. And we are all "originalists." But many constitutional interpreters find the "intent" of the framers and ratifiers of the Constitution in, well, what the Constitution says.
If the Constitution says that Congress has the power to regulate "commerce with foreign nations, and among the several states, and with the Indian tribes," we look around us and see what "commerce" today consists of. If the village "barber chirurgeon" has been replaced by a nationwide for-profit hospital chain and a system of group health insurance, then the power of Congress tracks that change. That's an act of interpretation, to be sure; but it's no more of one than the Da Vinci Code–style charade engaged in by many far-right "originalists."
At their baldest and strongest, originalists claim that the nation is bound by their own opinion of what was in the minds of the framers. For all their claims of superior virtue, "originalists" agree that what the framers said governs; they just want to control what counts as what the founders said.
Recognizing the problems inherent in the quest for "original intent," a number of originalists have moved on to what they call a quest for "original public meaning," or the "original understanding." That is, they say, we should consult history to determine what ordinary people in 1787 (or 1866, or whenever a specific provision was written) would have thought the words meant. Justice Scalia, for one, considers that inquiry pretty straightforward: "Often—I dare say usually—that is easy to discern and simple to apply." But as practiced by Scalia, that tends to reduce itself to, "Trust me, I knew the framers and here's what they would have said."
Consider Scalia's concurrence in Citizens United v. Federal Election Commission. In that case, the conservative majority gutted federal restrictions on expenditures by corporations during elections. In his dissent, Justice John Paul Stevens challenged the right on "originalist" grounds. During the founding period, he noted, most political thinkers distrusted the corporate form of organization. That might be true, Scalia replied, but only because in the eighteenth century corporations were associated with monopoly privileges: "Modern corporations do not have such privileges, and would probably have been favored by most of our enterprising Founders."
This dishonest contortion exemplifies the problems with "original meaning." Scalia is essentially saying, "They didn't really know what they thought; luckily, I do." If we adopt his definition of the founders' intent, then we the people lose all right to interpret or even really read our own Constitution. At best, we must accept the dictates of historians, who often disagree.
At worst, though, we are delivered into the hands of Justice Scalia and his ilk. Judges usually know very little about history. But an "originalist" like Scalia is utterly confident about his power to pluck the "easy, simple" meaning from the air. By a bizarre coincidence, the "easy, simple" meaning usually coincides with the program of the twenty-first-century judicial right.
Serious originalist scholarship is very useful as one way of learning more about the Constitution. But in the hands of judges like Scalia or demagogues like Glenn Beck, it is really a kind of intellectual weapon designed to hide from ordinary citizens what is in plain sight—the text of the Constitution and the present circumstances to which it must be applied.
That text, and those circumstances, are the tools we the people need in order to fight back. To save our Constitution, we have to read it. What's remarkable is how few people actually do this before proclaiming their opinions. God knows lawyers don't. In most law schools, constitutional law courses don't even begin with the text. Instead, on day one, students read the 1803 case of Marbury v. Madison. That's the case in which the Supreme Court for the first time announced the doctrine of "judicial review," which allows it to review state and federal laws and invalidate those that, in its judgment, don't comply with the Constitution. Marbury is a terrific case; but the doctrine it embodies isn't written in the Constitution. So at the very beginning of their study, most lawyers leave the text behind, and never return to it.
Ordinary citizens also resist reading the Constitution. They think it's dull. In 1987, the American novelist E.L. Doctorow found no poetry in it. "It is five thousand words long but reads like fifty thousand," he reported sadly. "It lacks high rhetoric and shows not a trace of wit, as you might expect, having been produced by a committee of lawyers. It uses none of the tropes of literature to create empathetic states in the mind of the reader."
Doctorow was wrong. The Constitution as a whole takes effort to read; but once one puts in the effort—several readings, all the way through, and some serious thought about what one has read—it reveals a surprising, indeed sometimes dazzling, array of meanings. By turns political, legal, epic and poetic, it shows us a number of strategies for dealing with contemporary challenges.
How do we read the Constitution then? A citizen who seeks to understand the Constitution should not assume that the answers lie in Supreme Court cases. For one thing, many important constitutional questions have never come before the Court. Some, indeed, can never be heard by any court—they constitute what judges and scholars call "political questions," which must be worked out by other branches of the government.
Second, the courts may get it wrong. In 1857, the Supreme Court announced that Americans of African descent were not and never could become citizens. A bitter political struggle, and an even more bitter Civil War, produced a national consensus that this decision was profoundly wrong even on the day it was announced. More recent decisions, from Roe v. Wade to Citizens United, have provoked profound criticism by political leaders and ordinary citizens. Citizens are not "wrong" because they disagree with the Court.
At its most basic level, reading the Constitution requires the tools that Vladimir Nabokov urged readers to bring to any text: imagination, memory, a dictionary and a willingness to use all three when the going gets tough.
Read the Constitution and measure it against the absurd claims we hear every day. This is a matter of life and death for our Republic. We won't find the Tea Party manifesto there; nor will we find the agenda of progressive advocacy groups. What we will find is a set of political tools and a language that fair-minded citizens, progressive or conservative, can use to talk through our disagreements.
Trapped in that ghastly church basement last year, I made a resolution that I would try to help rescue the Constitution from "constitutionalists." Here and now I say to Nation readers that if any group of citizens anywhere wants to meet in a church basement to discuss these issues, I will either go there to help or try to find someone who will. It's time for progressive constitutional scholars to stop mumbling about deconstruction and speak up for democracy.
Ordinary Americans love the Constitution at least as much as far-right ideologues. It's our Constitution too.
It's time to take it back.