Originalism, or the Living Constitution?

By Tom Kando

There is an interesting article by Jill Lepore in the January 17 issue of the New Yorker, titled The Commandments. It discusses our growing tendency to worship the Constitution as a sacred scroll, and to insist that it be adhered to in its original form, rather than to see it as an evolving document which must continue to adapt to a changing world. I call this the cult of originalism.

For example, Senate candidate Christine O’Donnell stressed that the phrase “separation of church and state” does not appear in the constitution or in any amendment (true). Neither does the constitution, as segregationists used to remind us, mention “busing” anywhere. Last spring, Sarah Palin said “we’ll keep clinging to our Constitution, our guns and our religion.”

In other words, if something ain’t in the Constitution, we oppose it, say originalists such as Michelle Bachmann, house majority leader John Boehner, Supreme Court Justice Antonin Scalia and many others. Originalism means: stick to the strictest, most literal, possible interpretation of the Constitution.

On the other side are what these people call “judicial activists.” These are judges and other liberals who are accused of inventing new twists to the Constitution, adding new rights - rights which the founding fathers did not mean to be, and which - according to originalists - are therefore unconstitutional. Case in point, they say: where on earth does the constitution say that women have a right to abortion?

The constitution is only about 4400 hundred words long. Even so, most Americans are pretty ignorant about it.

A survey revealed that 8 out of 10 Americans (including house majority leader John Boehner!) believe that the phrase “all men are created equal” is in the Constitution. But the words appear in the Declaration of Independence. An even larger proportion believed that “Of the people, by the people and for the people” is in the Constitution. It is part of Lincoln’s Gettysburg address. Nearly half believed that the words “From each according to his ability to each according to his need” are part of the Constitution. They were written by Karl Marx.

I have utmost respect for the Constitution. I remember vividly the day when I became a US citizen. It was a sunny September afternoon many years ago. I went to the Sacramento Court House. The judge asked me:

“Tell me, young fellow(I was 27), what is the Constitution?’

“Well...” I began, mumbling and fumbling, “It’s the legal document which stipulates...”

“Son,” he cut me off: “It’s the law of the land.”

With that, the judge stood up grinning, shook my hand, congratulated me, and sent me home with a small US flag. Next to the births of my children, this was perhaps the greatest day in my life.

BUT: I don’t believe that the Constitution should be treated as sacred and infallible, as something to worship. The Constitution is not what people like Glenn Beck claim it to be. For example:

! The Word “God” does not appear in it once.

! On the other hand, it contains the embarrassing three-fifth compromise:
According to Article I. Section 3, the founding fathers felt that one slave (read: black) should count for 3/5 of a free man (read white). Of course, this was invalidated by the 13th (1865) and 14th (1868) amendments. But it is still there, in all its ugliness!

! ...Besides, even the 14th amendment still excluded women from voting.

! ...And even the 13th amendment allows involuntary servitude (euphemism for slavery) as punishment for crime.

! Article 1, Section 9.1: stipulates that the “importation of people” ( read: slaves) must not be forbidden, and that it shall be accompanied by a $10 tax per “imported person.”

! Article IV, section 2.3 states that persons escaping service or labor in one state (read: run-away slaves) must be returned to their states and their owners.

! The Constitution often specifies sums for certain purposes. For example, the 7th amendment guarantees jury trials for controversies over $20. Obviously, fixed monetary amounts make no sense, as the years go by.

Consider also the following amendments:

The 16th amendment, 1909: Introduces the income tax.
The 18th amendment, 1917: Prohibition.
The 19th amendment 1919, Women get to vote.
The21st amendment, 1933: Repeal of prohibition.
The 22nd amendment, 1949: Limits the presidency of the US to two 4-year terms.
The 26th amendment, 1965: 18-year olds get to vote.

Isn’t it obvious that as a society, we experiment, we change, we make mistakes, we correct them? Prohibition was a mistake. So we corrected it with the 21st amendment. Maybe the 22nd amendment was also a mistake. In my view, failure to ratify the ERA amendment was another mistake.
Do women have a constitutional right to abortion? If the courts - reflecting the general will - decide that they do, then they do. Is capital punishment constitutional or not? Same thing.

Originalism is as nonsensical as the literal interpretation of the bible. The US Constitution must be a living, evolving document. Otherwise, it becomes absurd. leave comment here