Monday, October 15, 2012

Thoughts on the Constitution (1)

Introduction:  Strict versus Loose Construction

When the Constitution was signed by its framers on September 17, 1787 and sent to the states for ratification, it was intended that—upon the approval of at least nine states (Art. VII)—the document would become “the supreme law of the land” (Art. VI). The ninth state to ratify the Constitution was New Hampshire, which took its decisive vote on June 21, 1788, and the new federal government under the Constitution formally began the following Spring with the inauguration of George Washington as president.
The Constitution has served our country well for over 200 years, but like any form of government it is only as good as the men who administer it. The integrity of the Constitution depends entirely upon the integrity of those who are elected to hold office under it. It can only be an effective instrument of government if its officers are committed to abiding by its strictures. This is why officeholders in the federal government are required to take an oath that they will uphold the Constitution. The oath of office for the presidency is provided in Article II:

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—“I do solemnly swear (or affirm)[1] that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” (Art. II. Sect. 1.8)

Article VI requires that all state and federal officeholders likewise take an oath to support the Constitution.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution. (Art. VI.3)

At the start of each new Congress,[2] all newly elected and re-elected members, which includes the entire House of Representatives and one-third of the Senate, must be sworn in. The specific wording of the oath is provided by Title 5 of the United States Code, and runs as follows:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.[3]

These oaths require familiarity with the contents of the Constitution and a strict adherence to its provisions. Elected officials, however, increasingly disregard the Constitution whenever it does not allow them to do what they want. How do they justify this disregard? With a legal theory that considers the Constitution to be a “living” document. According to this theory, the meaning of the words, phrases, and provisions of the Constitution is not static, not fixed, not unchangeable, but in a constant state of development—always in a direction that suits the tastes of the interpreter. In this way, other meanings, far different from what the framers intended, can be imported into the document.[4]
Woodrow Wilson may have been the first to have referred to the Constitution as a “living” document.

The theory has its roots in the “progressive” philosophy expounded by Woodrow Wilson in the years before he became president. Wilson criticized the Founders’ checks and balances as an unnecessary drag on the efficiency of government. In his landmark speech “What is Progress?” Wilson declared the Constitution to be a “living thing,” and he urged that it be interpreted according to “the Darwinian principle.” That is, the Constitution must evolve.[5]

The framers knew, of course, that they were not up to the task of producing a governing document that would never need to be changed, perfect for all ages. They knew it was not perfect when they fixed their names to it. This is why they provided a way for the Constitution to be amended (Art. V). The amendment process is the only lawful way to change the Constitution. To change it by a method of creative interpretation, reading into its words and phrases meanings that would never have occurred to its framers, is dishonest and lawless. The entire point of having a Constitution is to have a government of laws rather than a government of men. Nevertheless, the “living” Constitution view is the dominant view of jurists today. The approach is also referred to as the “dynamic” view of the Constitution and “loose constructionism.” Consider the position of two current Supreme Court justices:

Justice Stephen Breyer…has argued that the Supreme Court should be free to ignore the Constitution’s literal “text” whenever a majority of justices dislike the “consequences” of adhering to it. Justice Elena Kagan, in her confirmation hearings, made it clear that she would not vote to strike down a hypothetical law requiring Americans to eat their vegetables. In June 2012, Kagan would join the Court’s majority in holding that the government can force you to buy health insurance.[6]

The “living” or “dynamic” view of the Constitution stands opposed to the traditional approach, which has been called “originalism” and “strict constructionism.” According to this approach, the words, phrases, and provisions of the Constitution should be interpreted and applied according to its original meaning and intent. Adam Freedman explains the originalist approach very succinctly.

1.       The Constitution is the law.
2.       Like any law, it should be followed in both letter and spirit.
3.       If a particular provision of the Constitution is not clear, we should look to the meaning that its words would have conveyed to those who ratified it, and the people they represented. In other words, the main text of the Constitution should bear the meaning it had when it was ratified in 1787; the Bill of Rights, when it was ratified in 1791; the Fourteenth Amendment, when it was ratified in 1868, and so on.[7]

This is what the founders themselves understood to be the only safe and proper way to understand the Constitution. Thomas Jefferson made the point very clearly.

On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.[8]

James Madison, the Father of the Constitution, took the same view, and lamented in a letter to Henry Lee (June 25, 1824) that this principle of interpretation was not being strictly adhered to, even in his day.

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense And that the language of our Constitution is already undergoing interpretations unknown to its founders, will I believe appear to all unbiased Enquirers into the history of its origin and adoption.[9]

Joseph Story, a Justice of the United States Supreme Court from 1811-1845, explained how every reasonable jurist until relatively recent times approached the interpretation of the Constitution.

It is to be interpreted, as all other solemn instruments are, by endeavoring to ascertain the true sense and meaning of all the terms; and we are neither to narrow them, nor to enlarge them, by straining them from their just and natural import, for the purpose of adding to, or diminishing its powers, or bending them to any favorite theory or dogma of party.[10]

To stray from a strict constructionist approach to the Constitution necessarily destroys its integrity as a governing document and goes so far as to undermine the very idea of the rule of law. As far back as 1799, Albert Gallatin, an important political figure in our founding era, explained the danger of loose construction very well when he said that our liberties “are only protected by a parchment—by words. They [our liberties] may be destroyed whenever it shall be admitted that the strict and common sense of words may be construed away.”[11]
It should be obvious that strict constructionism is the only honest way to read the Constitution, as it is the only honest way to read any written material. Suppose you had written a letter to a friend, and your friend misunderstood a statement you had made, and that as a consequence of the misunderstanding, he took offense and became angry. As soon as you learned the cause of your friend’s anger, you would attempt to clear up the misunderstanding by explaining your original intention. But suppose your friend insisted on ignoring your explanation and continued to attribute his own meaning to your words. You would soon find yourself alienated from a friend. As unfortunate as that would be, the danger of reading the Constitution while ignoring the original intention of the framers is far worse than losing a friend. We may well end up losing our liberties.
The truth is the Constitution is very nearly a dead letter. Lawless men have pulled off a bloodless coup by investing the Constitution with a meaning very different from what the framers intended. They have succeeded in pulling off what can only be called a second American revolution, far different in character and intent from the first. It is up to a new generation to recover the heritage of our Founders and so restore the original principles of the Constitution.

How do we discover the original meaning of the Constitution? By looking in several places:

1.       The debates that took place during the Constitutional Convention
2.     The debates that took place during the ratifying conventions held in each of the original states
3.       The Federalist Papers
4.       The Anti-Federalist Papers
5.       The Articles of Confederation
6.       The actions of the first Congress
7.       Early Supreme Court decisions
8.       The common law and legal textbooks of the period
9.      Dictionaries of the period (Samuel Johnson’s Dictionary of the English Language, 1755; Noah Webster’s American Dictionary of the English Language, 1828)

[1] The provision to substitute a simple affirmation for an oath was an accommodation made for Quakers who have a conscientious objection to swearing an oath. The objection is based on their interpretation of Matthew 5:33-37 and James 5:12.
[2] A new Congress is seated each January in every odd-numbered year.
[3] The United States Code is a compilation of the federal laws of the United States. It is published every six years. The current code is over 200,000 pages long. For the wording of the oath above, which is also to be taken by members of the armed services, see
[4] It is a commonplace in the interpretation of Scripture to distinguish between exegesis and eisegesis. Exegesis is bringing out of the text the meaning that is contained in it (from Gr. ejxh>ghsiv, to lead out). Eisegesis, on the other hand is to read into the text a meaning that is not contained in it (from Gr. eijsh>ghsiv, to lead in). Needless to say, exegesis is the only faithful way to interpret the Bible, and in fact the only honest way to read any text, including the Consitution.
[5] Adam Freedman, The Naked Constitution:  What the Founders Said and Why It Still Matters (New York, NY:  Broadside Books, 2012), p. 7. See also Jonah Goldberg, Liberal Fascism:  The Secret History of the American Left, From Mussolini to the Politics of Change (Broadway Books:  New York, NY, 2009), chapter 3, “Woodrow Wilson and the Birth of Liberal Fascism,” pp. 78-120
[6] Adam Freedman, The Naked Constitution, p. 4
[7] Ibid, p. 5
[10] Joseph Story, A Familiar Exposition of the Constitution of the United States (Lake Bluff, IL:  Regnery Gateway, Inc. [1840] 1986), p. 57.
[11] Adam Freedman, The Naked Constitution, p. 13

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