Graver: That pesky document

While I do enjoy the occasional white wig or knickers, I have no intention of trying to live in 1787. This seems to be what most people think, though, when I say I’m a devout Originalist. It seems that it is becoming cultural dogma that the Constitution is a forever changing, developing sword of social justice that is necessary to reflect a revolving society. To many, saying that the Constitution is dead, unchanging and strictly limited is moral heresy.

Justice Stephen Breyer articulated this progressive interpretation recently in his book, stating: “The court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances.” This view, however, comes out of an ends-based approach to constitutional theory, which leads to an intellectually dangerous slippery slope. By giving the courts a mandate of morality, we are giving a federal body the power to subject us to the subjective — a Constitution founded in modern perceptions rather than defined principles. Imagine you have a house (or country) but its foundation (or Constitution) is constantly changing or entirely unknown (see the 14th Amendment). Even though I agree that policies such as segregation or prohibition of interracial marriage are deplorable, they shouldn’t be constitutional questions.

Now I realize the tough sell for the alternative — how can someone endorse a reading of the Constitution that permits such societal evils? But not doing so is to irreparably restructure our system of checks and balances — a detrimental cost in the name of progressing society.

To allow pragmatism to drive constitutional interpretation defeats the purposes of its enumeration. Once we allow the court to solve one social ill, despite its magnitude or necessity, we can no longer justify a limitation in response to subsequent expansions of power. We cannot pick and choose; the mandate exists in its entirety or not at all. Allowing five unelected individuals to become an omniscient super-legislature, pulling out from various “penumbras” certain “fundamental rights,” is a blank check for undemocratic societal manipulation, whose calamitous effects we have already seen in spades through history (the New Deal, for instance, comes to mind).

Though the idea of a written Constitution seems integral to our modern culture, so much so that it’s hard to fathom a government without one, the English did not have one and still don’t. Americans decided to write down our basic principles, in response to the oppressive nature of British parliament, coupled with the governmental and legal turmoil of the 1760s and ’70s. But it is imperative to realize our Founding Fathers put forth defined ideals — not ever-evolving, all-encompassing principles. As James Madison wrote, “The powers delegated by the proposed Constitution to the federal government are few and defined.”

The Constitution was intended as an impediment to quick change, not a means of change. Originalism is not a mandate for standing still but rather one for progressing cautiously. Originalists do not crusade against abortion, civil rights, expanded regulation etc. Instead, we just understand that our Constitution is an outline — a document not applicable to most facets of government (which was intended to be left to states). As Alexander Hamilton wrote in Federalist Paper 78, “The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.”

It is intellectually dishonest to contort a defense of Originalism with a constant defense of the status quo. We did not need the benevolence of a living constitution, and its human disciples, to constitutionally deal with slavery or universal suffrage. But as precedent from the last century has indicated, (reading the Commerce Clause out of the Constitution and developing an omnipotent approval process of society through “substantive due process”), we have been increasingly prone to accept immediacy over democracy’s free market of ideas. Allowing such a Machiavellian justification for an expansive constitutional interpretation is creating a Supreme Court antithetical to its purpose of tempered restraint. When we allow what is in effect a dormant oligarchy to determine what laws should happen, rather than what can, we’ve neutered our founding document.

This column is not intended as a rebuke of progressivism. Rather, it is my argument that we need to first understand what our government is proscribed to do before we debate the merits of respective courses. Our Founding Fathers were very careful in the limited few powers enumerated in order to create the constitutional liberalism under which we have thrived. Originalism is not the product of the radical right or for people who want our culture to remain stagnant. Rather, it is the only Constitutional reading that guarantees, at its core, basic liberties. Frankly, there simply is no other defined manner in which to read the Constitution — it otherwise is just varying degrees of subjectivity.

We are a smart and conscious people, so let us do the evolving. Leave the Constitution dead.

Comments

  • Anonymous Bosh

    Thoughtful article. And I agree with you that “The Constitution was intended as an impediment to quick change, not a means of change.” The judiciary of late likes to ignore the already existing mechanism by which the Constitution may be changed; simply note the several amendments made (and repealed) over time. THAT is the flexibility of the document, not the interpretive skills of an inherently biased political, er, judicial group.

    Seems there be lots o’ folks who study constitutional law in order to undermine (rather than support) the document. Too bad the citizenry has been blocked from the “scholarly” thinking of such influential constitutional “experts” as, say, the President…

  • FailBoat

    Hear, hear.

  • justayalemom

    Wonderful article!!! Thank you Mr. Graver and thank you Anonymous Bosch! I Desperately wish all self proclaimed progressives read this.