May 22, 2018
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A Living Constitution

Members of Congress recently read the U.S. Constitution on the House floor. Republican leadership is requiring that every proposed bill cite the specific constitutional provision that authorizes it. Strangely, these efforts are accomplishing the exact opposite of what they intended.

Their actions, a response to pressure from the tea party movement, were supposed to emphasize the idea that the original Constitution set rules that have been violated by innovations including Social Security, Medicare, Medicaid, the federal income tax, the recent health care overhaul and all man-ner of federal regulations in the fields of health, working conditions, the environment and finance.

In reading the original document, there were some shocking obstacles. Customs and beliefs that were common at the time have been changed or outgrown. So, lawmakers read a sanitized version that left out provisions that accepted slavery, assigned a Negro only three-fifths of white person in population counts for representation in Congress, assumed that women had no right to vote or protection against discrimination, approved punishment by flogging, and imposed and later repealed a ban on alcoholic liquor.

In their dispute over what should be read and what should be omitted, lawmakers managed to stir up renewed demands for the long-stalled Equal Rights Amendment that would specifically guarantee the rights of women and brought into question the whole doctrine of “originalism.”

The reading also drew attention to the expressed views of the leading advocate of constitutional originalism, Justice Antonin Scalia. In a recent interview published in the journal California Lawyer, he said that the guarantee of equal protection in the 14th Amendment did not extend to protecting women against sex discrimination. As Justice Scalia put it, “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that.”

He went on to concede that originalism is not perfect: “We don’t have the answer to everything, but by God we have an answer to a lot of stuff … especially the most controversial: whether the death penalty is unconstitutional, whether there’s a constitutional right to abortion, to suicide, and I could go on. All the constitutional stuff … I don’t even have to read the briefs, for Pete’s sake.”

Justice Clarence Thomas goes even further with originalism. He has argued that decisions such as the banning of school prayer were inconsistent with the framers’ intentions.

Reading the Constitution was a good idea, but the whole document should be read and studied. Its changes have reflected the fact that everything changes — our culture, our technology, our values and our views. Its flexibility is what has kept this nation strong and lasting.

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