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 http://www.law.cornell.edu/uscode/text/5/3331
[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
[8]
http://www.founding.com/founders_library/pageID.2194/default.asp
[9]
http://www.constitution.org/jm/18240625_lee.htm
[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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