#424 Musings Beyond the Bunker (Monday August 8)
Good morning,
I have had a love affair with our Constitution most of my life. It is a document written by some of the most brilliant minds of the time, a document that espouses our beliefs and aspirations and provides for the instrumentalities of a government to pursue these objectives.
The fact that the Constitution is a remarkable document, both for its time and as a template upon which to build and sustain a government, would not seem in dispute. Yet these days it seems to have fallen on hard times. Some say it is inadequate, others suggest its primary purpose was to maintain the slave-holding aristocracy of the South, others argue it is not adequately equipped to deal with the complications of the present day, and still others say it is not sufficiently constraining of would-be despots and kleptocrats. To some degree, there is truth in all of this and, yet, fundamental truths and functions embedded in it have made this seminal document arguably the greatest example of humans ordering their affairs and acknowledging their mutual interdependence and value as individuals. This is my first attempt to describe how I think about the Constitution and its application and interpretation in these fraught times.
Much of the Constitution’s language is aspirational, some of it nuts-and-bolts and, alas, some shameful. That it is both complex and brief is in part a contributor to its endurance, greatness, and flexibility in light of different technologies, sensibilities, and times. Its genius, including how it came into being and how it served as a touchstone for the nation’s development and its adoption in principle (sometimes employing some of the same actual words) by other countries, is part of what encouraged me in the study of history and law. I believe its world-view and its balance of Lockean ideals, while seeking to constrain Hobbesian tendencies is brilliant and set the American experiment off on a solid footing. As such, it saddens me deeply that we have reached an inflection point that challenges the continued wisdom and viability of that same Constitution.
Our Constitution is not the first constitution in the democratic world. But it is the first set to writing. If one were to follow British politics, one hears talk of one thing or the other being constitutional or unconstitutional in reference to an amorphous non-written constitution—a set of indeterminate, yet discoverable, ideals. In the British system, the constitution exists and is knowable—learnable—through evolution and circumstance, much like the common law.
MY SIMPLISTIC VIEW
Our Constitution was designed with several broad purposes in mind, each taking on even greater importance in our time—and made even more important now that Trump and his legions threaten that very Constitution. A few basic thoughts:
1. The Constitution was an effort to make sense of a loose confederation of states with different governments, priorities, religious dogma, traditions, creeds, and economies. The nation created was strong enough to survive the high stakes politics of European nations with global scope when America was a weak country on the outskirts of civilization, without the economy or military of others. Eventually, through a series of actions and compromises, it survived the sectional divisions of the early 19th century and eventually—in the form of the Union forces and propelled by the likes of Abraham Lincoln and a coalition of abolitionists—beat back the forces of separatism and the desire to retain the backwards and perverse institution of slavery. That this nation has continued to span a continent, survive and thrive is a tribute to the founders’ ability to create a cohesive whole of the previously disparate states.
2. The Constitution was an effort to instill a Lockean view of the human condition, the sanctity of the individual, and a measured, limited government that was based upon the consent of the governed and not the whims of kings or despots. It begins with a statement of intent that is broad-reaching and idealistic—a set of ideas that can be (and have been) embraced by people of varying political creeds. It was careful to enumerate certain “unalienable” rights and to restrict the government’s intrusion into others. The Ninth Amendment contains, to me, the essence of the Constitution—that the government has a limit on constraining the liberties of individuals—a limit that cannot be breached by the government.
3. The Constitution established a series of technical rules (which differ from the broad concepts I describe above). These broad technical rules shape what the executive, legislative and judicial branches are intended to act (how they are constituted and organized, how they interact with each other, and the specific duties assigned to each). The genius of the separation of powers is that no one branch is predominant. Indeed, the legislature is bicameral in an effort to diffuse overreaction or overreach by a single legislative chamber. The Constitution also contains some rules regarding the interaction of the federal government and the various state governments (federalism). Some of these rules are hard-and-fast, incapable of change without constitutional amendment. Others are more flexible and allow for refinement over the course of history. But in this THREE PAGE document, not every eventuality could have been anticipated.
DO WE READ ONLY WORDS OR THE INTENT BEHIND THOSE WORDS AS WELL?
The Constitution is both a fixed point to which we can turn for clarity and it also is open to interpretation. The problems the founders faced, the challenges they anticipated, and the very words they chose must be viewed both in the context of their time but also in the application of those concepts to modern times (as, of course, modernity evolves). The concepts of “originalism” and “textualism” ostensibly are based upon trying to ascertain the intent of the founders through literal interpretation of the actual words used in the Constitution, yet relying upon some sense of history and tradition (in this case, as selectively chosen by Justice Alito) when the Constitution is either silent or the words are in doubt. But these theories do not take into account new technologies, ways of thinking or events in interpreting the words of the founders, nor do they take into account what the founders were thinking when they put these words to paper. The words are, in the end, merely words and should be considered in light of their drafting. There seems little desire on the part of the Court’s current majority to consider what the logical outgrowth from the concepts beyond the words might look like.
It is tough to rationalize what the Second Amendment says with what gun advocates want. Indeed, until the Heller case, it was settled law that the Second Amendment did not grant individuals the right of gun ownership, much less the unfettered right to the type and extent of the weapons. It is hard to square the circle of the idea of unenumerated rights—rights to control our own bodies that were not taken from us by the Constitution—with maternal mental and physical health in an age in which our knowledge level is so much higher, in a world of ultrasounds and other advances. Judicial review is nowhere to be found in the Constitution and yet it works because Chief Justice Marshall saw that it could be employed to give life to the words in the Constitution in controlling the political branches. It doesn’t seem that hard to me to imagine the Constitution as a template established nearly 240 years ago, a starting point for a rational analysis of the circumstances today, but not the end point, required to be measured against the philosophical and political context established by the founders and advances and public opinion today.
MOSES (VIA PARABLE) EXPLAINS THE CONSTITUTION
There is a legend (known as a “midrash”) that God related to Moses that there would come a great scholar, many years in the future, by the name of Rabbi Akiva. Akiva would be a leading interpreter of the words of the Torah. Moses asked God to meet this man. God accommodated Moses by transporting him into the future and having him sit toward the rear of Rabbi Akiva’s class. As Moses listened, he complained to God that he did not understand what was being said. He felt his knowledge of God’s law was wanting. Just then, a student asked Akiva to explain something about the lesson, and the teacher proclaimed that this was part of the law that came to Moses at Mt. Sinai. Moses, the original lawgiver, did not know at Sinai that this was part of the law and he could not have known centuries earlier what would evolve from the original words he received. Those original words were applied to a constantly changing world and interpretations of future generations, but always retaining the core truths and ethical framework contained in the original law.
This story of the evolution of the bible has relevance to our current debate about the Constitution. In this metaphor, substitute Moses with the founders and Akiva with modern circumstances and thinking. What is being discussed today could not have easily been contemplated by the founders. How could they have contemplated modern medicine or modern armaments? How could they have anticipated a continent-spanning nation with states north of Canada and in the middle of the Pacific, with territories spread throughout the world? How could they have contemplated the vast differences in population among the states that so skews representation in the Senate and has created a system of minority rule? How could they have contemplated the growth of the federal government and its complexities and the need for an administrative state? They did their best but their words cannot be applied rationally (and certainly not literally) to each and every circumstance today. Their intent is what should be discerned and applied. The ideals and motivations behind their actions and the drafting of the Constitution are what is important.
The law Moses received at Mt. Sinai was a start—the balance of the law was to be “discovered” by future generations. In latter days, rabbis filled in the spaces and molded the concepts of the original to address circumstances on their time. If religion evolves and the alleged word of God can morph and be refined with time, so too should the Constitution, as molded by common law, technology and circumstance. As God’s laws were a living document, to be refined and elaborated upon later, consistent with the original text, so the Constitution must be a living document, interpreted by current jurists within the context of the modern world.
Things change. And while the fundamental truths ought not, the application of those truths must respond to the present or whither and die as ancient words that are anachronistic to a modern society. Today, most frighteningly, the Constitution is being used as a sword against itself by those who wish to retain power at any cost.
More on the Constitution next week. Most importantly, we should all should be watching carefully the North Carolina gerrymandering case on the docket for next year. Its potential impact could be the most significant of any case yet to come before the Roberts court.
Have a great day,
Glenn
From the archives: