Jackman Blau

Constitution of the Living-Dead!

In Constitution, History on 4 February 2011 at 4:26 am

Imagine you have a monumental task in front of you.  This obligation is so tremendous that it’s outcome will directly affect the lives of millions of people for an untold hundreds of years into the future, and so critical that the smallest error could lead to death, revolution, chaos, and uprising.  The task?

Create a lasting structure of government that is fair to its people.

This task encompasses so many questions & philosophical inquiries that the perfect answer to this challenge may never be known.  I recall a famous individual saying, “Our form of government isn’t perfect, but it’s the best we have right now.”  I am, of course, referring to the United States Constitution.

It would be very stupid of me to claim that I am a “Constitutional Scholar”, but it does interest me enough to record my thoughts on the matter; and in doing so I openly acknowledge that the only thing I’m very certain of is that my mind may change in the future.  Experience, wisdom, differing points-of-view, and continued education are all things I actively work to achieve, and they are all things that may convince a person to change their stance.

Returning to the above task, which is so impossibly difficult it has been indented and italicized, we might like to break it down into individual inquiries which may (or may not) be easier to address:

1. What kind of government is likely to endure and persist?

2. How can a government be fair to its people?

First, this is where the old adage, “Those who do not learn from the past are doomed to repeat it” plays a key role.  Our founders may not have known what form of government would best work, but they sure knew what didn’t work!  They were also wise enough to know that people argued and disagreed on just about everything.

The founders eventually agreed upon a republic as the best answer to the above two inquiries.  As an interesting aside, the formal name of the type of government in the US is a “republic”, not a “democracy” – in a pure democracy everyone would have a say in what kinds of laws were enacted such that a majority rule would always take place.  A republic has elected representatives who decide on law and a president who holds executive powers.  We do although sometimes say we have a “representative democracy” or “democratic republic”.

The Constitution gave us a republic in which the power was held by the people in electing who they wanted to represent them, and by describing a system of checks and balances to avoid a “tyranny of the masses” that would be present if a simple majority decided what should be law.  Thus, our government is of the will of the people, which ensures that it is fair to the people, and also able to adapt to the needs of the people as they changed over time.

One concern shared by many of our founders was a government that would grow large and corrupt.  To address this, a Bill of Rights was drafted and amended to the Constitution.  Thus our Constitution describes how our government is to operate, and what rights the people have.

Now, one of the greatest challenges I feel the founders faced was uncertainty in what the future held.  As many of them were historians and lawyers, they knew the rights guaranteed to the people had to apply in times far ahead of them, even after their words possibly lost their original meaning.  Thus, they used simple and precise language to describe what it was they were going after.  This leads into a debate Constitutional scholars have today that goes as far back as before the thing was even in its final draft:

Should the Constitution be interpreted as a “living” document, whose meaning changes to reflect current society and culture, or as a “dead” document, wherein the original intent of the founding fathers is held above all?

To illustrate, consider the 8th Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”  The language is vague, and purposefully so.  As we have changed as a society from the late-1700’s to early-2000’s, our idea of cruel and unusual punishment has changed, but how should we know when a punishment has become cruel and unusual?  If we look at the Constitution as a living document, we can apply general moral standards to shape what is “fair punishment”, or if we look from the originalist’s point of view, we would try and understand what the founders had in mind.  In this case, it was decided by the US Supreme Court in 1958 that the words of the 8th Amendment weren’t static and should be taken to reflect our evolving standards of decency.

Now I’m sure I don’t have the answer to the general question of “living” vs. “dead” Constitution, and I’m unsure whether a correct answer even exists, but it is certainly an interesting topic for research.  Even the founders themselves seemed to differ in their views about this matter, which means we can’t properly ask them how we’re supposed to understand this thing some 224 years after it was written.  So it seems to be a matter of pure opinion, which wouldn’t be so troubling if the US Supreme Court Justices didn’t themselves disagree on the issue, or if issues of present day depended on the way in which the Constitution is interpreted.  For example, the first amendment guarantees “freedom of the press”, but does that also apply to establishments such as Wikileaks?

As a physicist, I feel the urge to interrupt myself and talk about a major difference between the laws of physics and the laws of the Constitution…but I’ll save it for another time.

There are plenty of good arguments for both a “living” and “dead” Constitution; enough so I can’t say I have a strong opinion one way or the other, but I consciously choose to remain neutral to take on new points of view and a deeper understanding with equal favor.

For example, one could assert that the founders knew the Constitution had to apply to future times when society had changed beyond their scope of imagination, so it’s appropriate the Constitution be interpreted in such a way to reflect societal standards.  There is no way they could have foreseen the invention of television, the internet, or the blog-o-sphere, but it’s arguable they wanted the Constitution’s meaning to apply to that which they couldn’t have envisioned.  On the other hand, even if you accept this argument, how loosely do you take the Constitution’s words when applying them?  There’s no standard, as this would vary depending on whom was asked, so the only viable interpretation is that which the framers had in mind.  Often, historians look to supporting documents such as “The Federalist Papers” to discern such interpretation.

It’s also reasonable to assert that if judges could not reflect upon the Constitution’s meaning and interpretation in modern society, then it would not reflect that society’s moral standards, so it’s important that the Constitution be regarded as “living”.  It’s also reasonable to counter-argue that such moral reflections should be amended to the Constitution rather than assumed from its text.  The only difficulty then is the process of amending the Constitution, which requires an approval of 3/4 (38) of the states.

I should acknowledge that this topic of debate is much more complex than this single post could ever hope to express.  The philosophy of a “dead” Constitution – more properly regarded as “originalism” – has several differing points of view in and of itself.  And the arguments “for” and “against” a “living” Constitution are as numerous as they are complicated and diverse.

That being said, 224 years after the Constitution’s ratification there seems no point of reconciliation, nor was there when it was adopted.  The only difference presently is that the ways in which society might be affected through varying interpretations have come to light.  When even the greatest judicial minds of today would disagree with one another on the issue, any final ruling seems hopeless.

This seemingly abstract debate does matter, however.  When you hear of the unconstitutionality surrounding bills or laws, this question often lies at the soul of the claim.

Thomas Jefferson wrote, concerning the issue,

“I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind.”

He also warned of treating the Constitution as,

“a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.”

But perhaps the most appropriate comment to wrap this up comes from one of my favorite founding fathers,

“So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts.”

-James Madison, Federalist No. 10

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