September 17 is Constitution Day. The commemoration was established by Congress in 2004 to memorialize the signing of the final draft of the U.S. Constitution on that date in 1787. Subsequently ratified by the requisite number of states in 1788, it became “the law of the land” (Article VI). It is the world’s oldest written constitution…and the shortest.
Now, 228 years later, some of its provisions can be as contentious as when they were drafted. Eighteenth Century Federalists (who favored a strong central government) and the Anti-Federalists (who didn’t) would instantly recognize — despite some evolutionary cross-breeding — their political heirs of today, who, having inherited a republic almost miraculously intact, can still find ambiguity in some of our most fundamental laws.
The ultimate interpretation of those laws falls to the Supreme Court, to which the Constitution grants limited original and broad appellate jurisdiction, particularly in cases arising under the Constitution (and other federal statutes) or in disputes between the States.
I am neither lawyer nor Constitutional scholar, but I anticipate no challenge when I remark that the Supreme Court’s most potent weapon is that of judicial review, i.e., having the power to ultimately decide whether a law – when challenged – is, or is not, constitutional. That power was effectively established under Federalist John Marshall, “the great Chief Justice”, in the case of Marbury v. Madison in 1803.
The ideological makeup of the Court from conservative to liberal and back again has, over the years, shifted with the political winds (Justices are, after all, appointed by a politically elected President) and it has at times been accused of undue activism; i.e., of making law (a privilege presumably reserved to Congress) instead of simply interpreting it.
Of late, those accusations have been coming mostly from the political right, but redoubtable former Justice Sandra Day O’Connor, hardly the embodiment of extreme liberalism (and a canny reader of the public mood) is quoted by author Jeffrey Toobin in “The Nine” as having said, “We’re a common law court…Of course we ‘make’ law as we go along.” Judicial activism, like beauty, is often in the eye of the beholder.
The Constitution is, however, written on paper, not chiseled in stone, and time and institutions change. The Confederacy contended that Article VII of the Constitution allowed them to secede, a view not dismissed as baseless by every legal scholar at the time, Northern or Southern. That particular debate was, of course, settled by force of arms, but Ulysses S. Grant, in his memoirs, contended not that the South was wrong in its interpretation, but, rather, that the Constitution itself was in need of revision, to wit:
“[it is] preposterous to suppose that that the people of one generation can lay down the best and only rules of government for all who are to come after them, and under unforeseen contingencies. The application of steam to propel vessels had not yet been thought of. The instantaneous transmission of messages around the world by means of electricity would [in the revolutionary era] have been attributed to witchcraft or a league with the devil. Immaterial circumstances had changed as greatly as material ones. We…ought not to be rigidly bound by the rules laid down under circumstances so different for emergencies so utterly unanticipated. The fathers themselves would have been the first to declare that their prerogatives were not irrevocable.”
Indeed, Article V, by providing for ongoing amendment to the Constitution, ratifies Grant’s assessment of the intentions of the framers, a view pre-affirmed by the philosophical founder of modern conservatism, Edmund Burke and echoed in unmistakable language over the years by such diverse political thinkers as Thomas Jefferson, John Marshall, Oliver Wendell Holmes, Jr., Richard Posner, and others. Thus it not a question of whether the Constitution may be changed, but how such change may proceed.
The crux, of course, is that amendment must arise out of due process, and many Americans are concerned lest change come via flawed interpretation by “activist judges” — on the left or the right — rather than by legislative deliberation. That the Constitution may be interpreted was foreseen – however obliquely – by the 9th Amendment, but contemporaneous theories of Constitutional interpretation evidence more shades of coloration than a rainbow.
Close scrutiny of the actual language used by the framers in order to divine their individual and collective intent has long been the normative standard, as in: “what did he mean by that”. But modern Constitutional interpretation has taken on complex dimensions not easy to get one’s arms around.
One could, for example, write an article longer than Rapunzel’s tresses on the interpretive theory of Originalism (and its corollaries, original intent and original meaning) which contend, in short, that the Constitution has a fixed meaning, established at its drafting, which must be always applied in pertinent cases. Justice Antonin Scalia, often referred to inaccurately (and to his great displeasure) as a strict constructionist is, rather, a commonsensical textualist, i.e., one who relies on the “fairly understood” meaning of words rather than trying to guess at the intent of their writer. But “fairly understood”, in the lexicon of original meaning theorists begs the question: what would the words have meant to a normal speaker of English at the time they were originally promulgated?; not what they might mean to the average American in the 21st Century.
Originalists postulate that it is the then-prevailing understanding by those who originally voted to ratify the constitution that gives the text its power as law; hence their view – if ascertainable — should prevail. The view of the then unenfranchised, who at the time comprised two-thirds of the population, is, regrettably, lost to history.
As to original intent, who in the present day could unerringly speculate on the unified intent of 50 such highly idiosyncratic individuals as our Founding Fathers, who were divided more by regional and philosophic differences than united by any collectively held credo other than a consummate love of liberty and the urgently compelling need to get the document written and ratified before fractious regionalism unraveled the nascent union?
And so we come to the antithesis of Originalism, the Living Constitution, an unfortunately-labeled characterization of a theory embraced by those who would welcome more flexible interpretation into the judicial review process. I say “unfortunately labeled” because it is yet another of those liberal coinages that, in its earnest good intentions, invites scathing parody. Even Justice Scalia was moved to quip, “I prefer the dead [later modified to ‘enduring’] Constitution to a living one”.
Living Constitutionalists agree with Originalists that where the constitutional text is clear, it controls; but they prefer to view the Constitution as a dynamic, “living” document; a durable structural framework upon which to build, rather than a set of static commandments resistant to evolving changes in society except via an arduous and sometimes immovable political process (see Equal Rights Amendment, Child Labor Amendment, etc.).
Such thinking is, of course, anathema to conservatives who see it as simply opening the door to activist judges to inject their personal values into constitutional interpretation.
Thus, the essential stasis between liberalism and conservatism in America is preserved in this issue, and seems unlikely to be disturbed anytime in the next 228 years.