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
10 comments:
Great one, Tom! "Originalism is as nonsensical as the literal interpretation of the bible." Maybe that's the trouble. Our friends who get comfort only from taking the Bible literally seem to be that same ones who need to read the Constitution the same way. Barry Schoenbron
I agree,
The original constitution was for a free association of states. That government effectively ended with the Civil War.
After the Civil War Amendments it became a Federal State in which individual states were no longer free to leave. However, the flow of power still went from the bottom up. That system ended with the 16th and 17th Amendments.
Under Wilson the states' power was basically eliminated by the 16th and 17th amendments, as the Federal Government and individuals became directly related through both taxation and representation. The states became more like administrative provinces. Power began to flow from the top down with federal grants to the states with many strings attached.
It is perhaps more accurate to refer to it as a dying Constitution than a living one. Bush called it a goddamn piece of paper and Obama seems to care for it even less. However, many people still have great respect for the original American Experiment, the way Cicero lamented the loss of Roman virtues and the original Twelve Tables that began their great civilization.
What we now have is semi-anarchic rule by interest group money, half of which is people wanting something from government, the other half being people who are paying for things they don't want to, or unable to, pay for. It is no longer either a Union of States nor about protecting the American people as a general population. Our culture wars are basically about money and there is little that happens in Washington that relates to its reason for existence.
The laws promulgated by these interest groups have little if any moral authority. They can be compared to the seemingly arbitrary promulgations of law by Roman governors, that were considered by the people as the mere wishes of power.
We are in name still a Republic, but we will probably default to military rule unless some radical changes occur within the Congress, Senate, and Supreme Court. At some point some type of Constitutional order will need to be restored. This may be a partial return to the original experiment in freedom or it may be a further departure from the original Constitution. It depends on whether the leadership is selfless or selfish. Perhaps we will degenerate into a new brand of feudalism for an industrial world where Microsoft, General Electric, Time-Warner, and other corporate giants become the equivalent of feudal lords.
Tom, Finally I'm taking time to enjoy your reports. I too liked the New Yorker article you noted and you may remember the one in the Sept. 27,'10 issue on Judge Stephen Breyer which considered much the same topic. Anyway, if anyone would take the time to read something about the actual cobbling together of the Constitution (all the difficult compromises and hopes that were stuck together to encourage actual acceptance in the new states) then they might understand how it has, can and should be considered a "living" set of rules. I sometimes think that all that effort we put in to teaching about "Government" and politics over the years fell on many deaf ears.
Gery,
Thanks for reading our blog. It means a lot to me, to be acknowledged by a political scientist such as yourself, who undoubtedly knows a lot more about the Constitution, and how it came about, than I do.
The constitution reflects strongly on an attitude commonly held at the time against an aristocracy class of people who subjected another "lower class". Certain inherent traits of humanity must be kept in check, and Thomas Jefferson's quote about "The tree of liberty needs to be watered from time to time with the blood of patriots and tyrants." Will be true as long as human existence. I would always wish to defer to the wisdom of certainly some of intelligent men ever to walk this earth, with the foresight to bless this nation with "liberties to ourselves and to our posterity". I most firmly believe that it's better to defer to those who believe these liberties were "endowed by their Creator" than by the latest committee to hold office. Certainly if something needs to be adjusted to configure to modern times such wise men would have included such a mechanism. Thankfully that process requires such a concenses that our God given liberties are not easily eroded. And that is the "living" legacy of such old men wise enough to plant trees whose shade they know they shall never sit in.
This responds to Barry and Gordon:
Barry: thank you for your support.
Gordon: Your comment is very impressive. I HOPE that you are wrong about the Constitution being a dying document. One hears that it is the oldest constitution in the world. So it is understandable that it requires increasing
"tweaking," as times change.
That said, your somber appraisal of the future and your Roman analogies are persuasive.
What is one to do?
Lizou,
thank you for your support. I am delighted that you take a look at this blog
My thanks to Roy, whose comment seems to strike a middle road between "originalism" and "judicial activism." That's commendable.
Tom, this was a good piece. Keep up the good work so lazy people like me can sit around and just comment.
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