On The Ebb and Flow of Constitutional Interpretation

I find it fascinating, from a historical perspective, how the Constitution of the United States has been interpreted within the confines of American political discourse over the centuries. 

From “strict Constitutionalism” to the concept of a “living document”, there are many ways to interpret the sometimes arcane language of this document (certainly “arcane” within the terms of 21^st century American English), and I am confident that there is enough historical precedent for reasonable men and women to allow for these interpretations of it’s language.  I hope in this extended post to document a number of those trends, acknowledge their validity within the discipline of constitutional law, and give some background for my own personal interpretation of the Constitution and it’s place within our political conversation.

That said, I should first acknowledge that I am not a lawyer nor do I have any particular background in constitutional law.  Quite frankly, in that regard, I am much like many of those on the Right that have taken to pithy Facebook posts concerning it’s Amendments and participate in Constitution study groups: they have no more specialized skill at interpreting the Constitution than I do!  That said, I’ve done my share of reading over the years and I hope to bring a bit of historical perspective to the many ways in which that document has been interpreted, starting from the founders and moving forward to today’s movement that seeks to “Return to the values of the Constitution”, and the ebb and flow of that movement over the last 200 or so years.

Perfect?

To say that the Constitution was a “negotiated document”, with the framers having many differing opinions and making many compromises, is an understatement.  Virtually every member of the Constitutional Convention of 1787 was rarely shy about writing to friends, family, and constituents back in their respective States, and letting them know what they perceived as the folly or wrong-headedness of their opponents’ views.  However, I find Benjamin Franklin’s comments of September 17^th, 1787 to be particularly enlightening:

“Mr. President, I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them.  For having lived long, I have experienced many instances of being obliged by better Information, or fuller Consideration, to change Opinions even on important Subjects, which I once thought right, but found to be otherwise”

Franklin hoped:

“…that every member of the Convention who may still have Objections to it, would with me, on this occasion doubt a little of his own Infallibility, and to make manifest our Unanimity, put his name to this Instrument.”

In his own very unique and self-deprecating manner, Franklin says quite clearly that he may just change his mind, given new circumstances and new information.

Many elements of the language of the Constitution are not easy to understand, and this is not just from our perspective hundreds of years later.  From the beginning, many in the Anti-Federalist movement felt that the document was so difficult to understand that it “amounted to a conspiracy against the understanding of a plain man” and was “willfully incomprehensible.”  One Anti-Federalist wrote “The constitution of a wise and free people, ought to be as evident to simple reason, as the letters of our alphabet”.  Patrick Henry argued, “A constitution ought to be, like a beacon, held up to the public eye, so as to be understood by every man.”  Further, he thought that the Constitution as drafted was “of such an intricate and complicated nature, that no man on this earth can know its real operation.”  These Anti-Federalists’ complaints, and many more issues, caused the ratification to become a real challenge:  Rhode Island rejected it in a popular referendum;  and in state ratification conventions it narrowly passed (89 to 79 in Virginia, 187 to 168 in Massachusetts, 30 to 27 in New York, etc.).

And the complaints didn’t end after ratification.  The widely held view of the Jeffersonian Republicans, expressed by one of it’s members, was that “The Federal Constitution by a fair construction is a good one prinsapaly, but I have no dout but that the Convention who made it intended to destroy our free governments by it, or they neaver would have spent 4 Months in making such an inexpliset thing.”

What am I trying to get across with the above bit of early American history?  The simple point is that the Constitution did not fall from the Heavens, directly from the Hand of God (regardless of what Warren Harding said about “divine inspiration”…<g>):  it was a grimy back-and-forth political process to arrive at an imperfect document that many held their nose and voted for anyway, acknowledging their fallibility and finding common ground.  Should we treat that document as dead, codified, and never to be amended or changed?  27 Amendments later, with the first 10 passing in relatively short order in 1791, I think it’s fairly clear that the document wasn’t perfect when signed.

The Changes Required

While from the very beginning, there were arguments concerning the clarity of the Constitution’s language, there were changes in America that occurred as this young nation matured that could, in all probably, not have been foreseen by the framers.

As Justice Stephen Breyer said “ “If you go back to the end of the 18th century and you examine what the founders thought…they didn’t think of the Internet, they didn’t think of television, and they didn’t think of the radio or automobiles”.  Here in our 21^st century perspective, it’s easy to see what subjects the framers could not possibly have known the courts would have to rule on:  banks, women, free markets, privacy, wiretapping, and more.  After all, they were framing rules for a small collection of mostly rural states, not a modern superpower. 

Putting aside the first 10 Amendments to the Constitution, i.e. The Bill of Rights, let’s look at other changes that may or may not have been unforeseen, but were required.  What is striking about this document, in many ways, is what was NOT said or established as law.

One item I find of personal interest, given that I am an agnostic, is that in the roughly forty four hundred words, “God” is not mentioned once.  Benjamin Rush once complained to Samuel Adams that “Perhaps an acknowledgement might be made of his goodness or of his providence in the proposed amendments.”

The word “white” wasn’t in the Constitution, yet Senator Stephen Douglas was still quite confident that the federal government was “made by white men, for the benefit of white men and their posterity forever.”  In 1857, the Supreme Court ruled, in regards to black men, “They are not included, and were not intended to be included.”  In comments after the landmark Brown v. Board of Education ruling, Senator James Eastland remarked, “There is nothing in the Constitution that gives the Congress, the President, or the Supreme Court the right to declare that white and colored children must attend the same public schools.”

Can this “inexpliset thing” be interpreted in more than one way?  I’m quite confident that reasonable and rational men and women can disagree on precisely what it says, and there may well be truth in both of their opposing opinions. And it becomes clear why each side of this debate can claim that the other has “no real knowledge of the Constitution”.  It’s this dichotomy of “strict constitutionalism” and a “living document” that has swung, like a pendulum, back and forth for hundreds of years.  Justice Felix Frankfurter, nominated to the court in 1938, said that it “is most significantly not a document but a stream of history”.  Justice Frankfurter could certainly be called a “non-originalist”, yet he was the staunchest supporter of State’s rights and one of the most outspoken advocates of judicial restraint in the Court’s history.  While it’s easy to look at this in “black and white” terms, the reality is quite a bit more complex…

What is at the heart of these opposing interpretations and what is their genesis?

Two Schools

There are 5 elements involved in interpreting the Constitution:

1.  The actual text and structure of the Constitution.

2.  The “intention” of those that framed or proposed the section of concern.

3.  Prior judicial precedent.

4.  The consequences of alternative interpretations:  social, political, or economic.

5.  “Natural law”.

There is general agreement that the first three elements are appropriate for the interpretation of the Constitution, though there are clearly differences in terms of the priority given to each of them, particularly when they lead in opposing directions.  There is a good deal of disagreement as to how much the consequences of a particular ruling should be taken into consideration when making the ruling.  And natural law, i.e. “God’s Law”, is rarely discussed in Constitutional circles today.

Those that put highest precedence on the text of the Constitution and the original intent of the framers are generally called “Originalists”;  and those that put greater weight upon precedent and consequences are known in constitutional law circles as “Non-Originalists” (very clever name, eh?), though that’s hardly how they’re described in the popular vernacular.

The term “Living Constitution” is actually a rather negative term coined by conservatives in the very early 20^th century, and indicative of how ludicrous they felt the concept was.  One might point to Woodrow Wilson and his comments in 1913 as one of those in the “Progressive Movement” that felt the “Originalist” interpretation of the Constitution did not suit the “modern era”:

All the progressives ask or desire is permission --- in an era when ‘development,’ ‘evolution,’ is the scientific word --- to interpret the Constitution according to the Darwinian principle;  all they ask is a recognition of the fact that a nation is a living thing.”

This concept of the nation as “a living thing” requiring governance that changed with the challenges at hand, seems a not unreasonable idea.  However, it was challenged quite vociferously by organizations such as the Sons of the American Revolution, the National Security League, and the National Association for Constitutional Government.  If fact, in the early 1920’s, James Montgomery Beck, known as “Mr. Constitution” for the number of originalist books he published, declared at that time that “the Constitution is in graver danger today than at any other time in the history of America.”  Personally, I believe that the originalists have felt that every era has been of the gravest danger to the Constitution, or at the very least, to their understanding and interpretation of it.

This chasm deepened during the New Deal, and in fact informs most of the discussion to this day.  Thurman Arnold, who eventually became F. D. R.’s Assistant Attorney General, wrote in 1935 “Hopeful people today wave the flag.  Timid people wave the Constitution….the only bulwark against change.”

In 1986 and before, Edwin Meese, Ronald Reagan’s Attorney General made many a speech, vociferously defending originalism, and in fact Reagan nominated Antonin Scalia to the Supreme Court, widely considered to be the strongest originalist voice on the court, that very year.

And last year, Meese and members of The Heritage Foundation, “The National Review”, and the Federalist Society met to sign what they were calling “The Mount Vernon Statement”.  This document was a call to arms for conservatives to return the nation to “founding principles”, as they were “under sustained attack” in “our culture, our universities and our politics.”  They said that “The self-evident truths of 1776 have been supplanted by the notion that no such truths exist.  The federal government today ignores the limits of the Constitution, which is increasingly dismissed as obsolete and irrelevant.”  While that makes for excellent news copy, and is clearly fodder for conservative blogs, is that truly what the “non-originalists” think?  The originalists presume that there’s one and only one way to interpret the Constitution:  the specific wording of the document and the “intentions” of the framers as evinced by letters and other supporting documents.  Is that truly the only way the Constitution can be interpreted?  But possibly even more important is the question, under this originalist point of view, as to what is “unconstitutional”.  Is a law or doctrine “unconstitutional” because it violates what was specifically expressed in the wording of the Constitution itself, which can of course be the subject of discussion, given the vague wording of some of the Articles;  or is that law or doctrine “unconstitutional” because it is simply not mentioned in the Constitution?  I believe this is the crux of the argument.

Jamal Greene, Professor of Law at Columbia University, writing about the rulings of Justice Antonin Scalia, said that “If democratic legitimacy is the measure of a sound constitutional interpretive practice, then Justice Scalia needs to give an account of why and how rote obedience to the commitments of voters two centuries distant and wildly different in racial, ethnic, sexual, and cultural composition can be justified on democratic grounds.” 

Does it seem unreasonable to believe that no written constitution can anticipate all the means by which a future government might oppress the people?  Is it reasonable to assume that judges may need to add to the body of laws to ultimately respect the nature of the freedoms that the framers originally outlined, even though those laws, or the potential loss of freedoms that new circumstances might engender that are what those laws grow out of, could not possibly have been thought of by the framers?  Are we indeed a “living nation” that is changing and growing?

Frankly, as you read the Constitution, the language is not only antiquated, but at many points is vague, and frequently ambiguous.  It seems possible to me that judicial precedent can be found to support either side.  And in those circumstances, is it unreasonable to consider which will offer the greatest good for the public?

I personally think that it is far too easy for originalists to lose sight of the forest for the trees.  Quite frankly, it seems to me that the focus ought to be on the higher purpose, the true spirit of the protection of liberties that was at the core of the Constitution.

And Now?

Those that are members of, or find themselves sympathizing with, the various “Tea Party” organizations have put respect for the Constitution at the heart of their beliefs.  Some might even say they have taken to “worshipping” the Constitution as a “perfect document”, not unlike fundamentalist evangelical Christians see the Bible as the “literal Word of God”, Council of Nicaea be damned.  This interesting similarity is something worth pursuing at greater length in another post, but for now, I’ll just say that I find the “Constitution study groups” quite like “Bible study” groups among those on the “Religious Right” in contemporary American politics.  In fact, the market for constitutional study guides has exploded in the last few years:  “The Constitution Made Easy”, “U.S. Constitution for Dummies”, “The Penguin Guide to the United States Constitution”, “The Annotated U.S. Constitution and Declaration of Independence”, and more.  These “guides” all attempt to put the arcane language of the late 18^th century American colonies into contemporary vernacular, but many of them do so with not inconsequential political “spin”.  The Constitution these “Tea Party” ralliers are learning, in many cases, bears scant resemblance to the forty four hundred words of the original document.  Again, that’s another post all together…. :>)

What I believe we see happening in our politics today, is a conflict, in many ways, between the Baby Boom generation and their elders, and the nature of the changing United States.  What many of those in their later years see as “traditional American values” are being superceded by the new values of our young, and by the changing demographic of our society.  In many ways, I find the “Tea Party” and it’s adherence to the “intent” of the framers of the Constitution, indeed their studying that document as if it were the “word of God”, to be a reaction to these changing times and their difficulty with adapting and adjusting to those changes.  As Sarah Palin said in a riff on the Obama campaign’s motto of “Change You Can Believe In”:  “We’ll keep clinging to our Constitution, our guns, and our religion, and you can keep the change.”  While that comment is meant as hyperbole, it is, to my mind, very telling of the core of this movement.

By no means do I mean to dismiss those that fly the flag and thump the Constitution, nor do I minimize the significance of their opinions, but I think it has become far too easy for many to call anything they don’t like “unconstitutional”, without having a solid understanding that takes into consideration the almost 230 years of it’s interpretation.  As long as those on the Right consider any scholar at one of the U.S.’s pre-eminent universities or any journalist that attempts to be as objective as possible and respects the traditional values of fact checking and information vetting to be part of the “liberal elite”, and summarily dismisses their well-considered positions, we will not be able to have an insightful discussion about the interpretation of the Constitution, or any other subject that can’t be summed up in simple two sentence soundbites.  The term “intellectual” simply shouldn’t be used as a political slur, particularly given the depth of study that our Constitution requires.

It’s time to look a bit deeper into the issues of our time and rely a bit less on placard-sized thoughts…