April 24, 2018
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Constitutional CPR

Alive or dead? Today, the 213th anniversary of the United States Constitution, that question looms large. This is especially so as the document is wielded like a sword, cleaving libertarian from progressive philosophies. Understanding the nature of the Constitution — neither underestimating its genius nor overstating its authority as inerrant — is critical.

Supreme Court Justice Antonin Scalia once said, “The Constitution that I interpret and apply is not living, but dead.” That view has been embraced by many in the tea party movement. These opponents of President Barack Obama’s agend, who thrust the federal government into many areas of national life, argue that the president and Congress must return to a restrained, constitutional purity. Many also assign a kind of divine inspiration to the men who drafted the Constitution, almost implying the document was handed down by God on Mount Sinai like the Ten Commandments. That view flies in the face of the disparate spiritual beliefs and political views those imperfect men held.

Another view of the Constitution — that it is a living, breathing document, reinterpreted within an ever-changing context — is articulated in a new book by Supreme Court Justice Stephen Breyer, “Making Our Democracy Work, A Judge’s View.” In an interview with NPR, Justice Breyer alluded to Justice Scalia’s view of the Constitution, saying, “People think … that the only way to protect against subjective views of judges is to have something called originalism, which is as if you could reach decisions by means of an historical computer.” The founders wanted a living document, one that could last for centuries, because they knew “perfectly well that conditions would change. The values don’t change. The circumstances do,” Justice Breyer said.

This is, of course, borne out with a cursory review of American history. The Constitution is silent on voting, so in the early years states set the terms, with white, property-owning men who were at least 21 years old enjoying the privilege. Women didn’t get the vote until 133 years after the Constitution was written, and the document held slaves to be property. It has done a lot of living and breathing, for which we are grateful.

The First Amendment certainly has flexed and grown, with help from the court. Though its stark language suggests no limits on speech, the court has wisely intervened, drawing a line between the right and slander, libel and words that can cause people to trample each other in crowded theaters. Justice Breyer also notes that with the rise of radio, TV and the Internet, the right to speech cannot be guided by the “dead hand of the 18th century.”

If the court’s role is to ascertain what the writers of the Constitution meant, the justice says, “then you’d better select nine historians and not nine judges to be on the court. And I’ll tell you,” he said in the radio interview, “those nine historians will very often disagree with each other.”

Rather than like a 500-year-old European cathedral, which can only be preserved as part of history, not improved or altered, the Constitution is more like a framed and sheathed house; how that house is finished off is up to the owners.

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