It has become fashionable in certain political circles to treat the U.S. Constitution as some type of sacred document, providing the final answer on all legal issues, infallible and unchanging. Proponents of this idea call this “strict constructionism”, where the meaning of the document can only be determined by looking to what the “framers” would have understood it to mean. This view forces us to consider legal problems raised by our modern world entirely within a framework that was built to address the issues of a world that has all but disappeared. The results are often far from satisfactory, with legal decisions that either defy common sense in our modern context, or else rely upon rationales that are more contorted than a Cirque du Soleil performer.
But this attitude towards the Constitution strikes me as problematic for any number of reasons. After all, if we look at the process that created the document, it seems highly unlikely that those that created it would have looked at it as being a perfect document. In fact, the opposite is pretty clearly true, as it was amended (i.e., changed) almost as soon as it was ratified. After all, the entire document was the product of a series of compromises, which naturally failed to be fully satisfactory to anyone, but which represented the best chance for consensus among those who were tasked with creating it. And since then, we have amended it twenty-seven times[1], which also clearly suggests that the original document was far from perfection.
Strict constructionists often invoke Thomas Jefferson as supporting their position. Jefferson was a believer in a limited Federal Government, and, in his view, any power or authority that wasn’t expressly given to the Federal Government belonged to the states or the people. It is this view that is rolled out to suggest that we shouldn’t re-interpret the Constitution to reflect our times. But Jefferson’s understanding of the limited application of the document did not reflect a view that the document would remain viable and applicable through time. If new powers were needed, Jefferson believed that the Constitution could and should be amended to expressly address the matter. He even went so far as to suggest that it would be best if the Constitution was thrown away entirely every generation and a new one written.
We now have a long history of reinterpreting the Constitution to address the changing ideals and circumstances of the nation. The problem is that some of these reinterpretations so stretch the original document or are based on such nebulous connections that the principles that rest upon them become subject to a great deal of disagreement.
But there is a solution, and it is sitting right before us in the plain language of the document and in the twenty-seven previous examples. We could resolve a number of troubling political and legal issues by amending the Constitution to address them. Certainly, this would be a difficult process, but it is one that would allow us to have a constructive debate about the ideals and values we want the Constitution to embody, especially as it relates to those issues, and in the end, any amendments that are actually enacted should reflect some general consensus, however limited
So then, what issues need to be addressed in such a process? And given the political stalemate that seems to have such a firm grip upon Congress these days, how on earth do we actually have the vigorous but productive debate that is necessary to build a general consensus on these issues? These are excellent questions to explore in later posts.
[1]This doesn’t count the unsuccessful amendment attempts, which include, among others, the Equal Rights Amendment (ERA) which would have prohibited discrimination based on gender, the District of Columbia Voting Rights amendment which would have provided residents of DC with representation in Congress.
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