Others, like Justice Breyer, don’t dispute that the original meaning of constitutional provisions matters. But they insist that sometimes the original understanding can take you only so far — that on the truly hard cases, the truly big arguments, we have to take context, history, and the practical outcomes of a decision into account. According to this view, the Founding Fathers and original ratifiers have told us how to think but are no longer around to tell us what to think. We are on our own, and have only our own reason and our judgment to rely on.
Who’s right? I’m not unsympathetic to Justice Scalia’s position; after all, in many cases the language of the Constitution is perfectly clear and can be strictly applied. We don’t have to interpret how often elections are held, for example, or how old a president must be, and whenever possible judges should hew as closely as possible to the clear meaning of the text.
Moreover, I understand the strict constructionists’ reverence for the Founders; indeed, I’ve often wondered whether the Founders themselves recognized at the time the scope of their accomplishment. They didn’t simply design the Constitution in the wake of revolution; they wrote the Federalist Papers to support it, shepherded the document through ratification, and amended it with the Bill of Rights — all in the span of a few short years. As we read these documents, they seem so incredibly right that it’s easy to believe they are the result of natural law if not divine inspiration. So I appreciate the temptation on the part of Justice Scalia and others to assume our democracy should be treated as fixed and unwavering; the fundamentalist faith that if the original understanding of the Constitution is followed without question or deviation, and if we remain true to the rules that the Founders set forth, as they intended, then we will be rewarded and all good will flow.
Ultimately, though, I have to side with Justice Breyer’s view of the Constitution — that it is not a static but rather a living document, and must be read in the context of an ever-changing world.
How could it be otherwise? The constitutional text provides us with the general principle that we aren’t subject to unreasonable searches by the government. It can’t tell us the Founders’ specific views on the reasonableness of an NSA computer data-mining operation. The constitutional text tells us that freedom of speech must be protected, but it doesn’t tell us what such freedom means in the context of the Internet.
Moreover, while much of the Constitution’s language is clear and can be strictly applied, our understanding of many of its most important provisions — like the due process clause and the equal protection clause — has evolved greatly over time. The original understanding of the Fourteenth Amendment, for example, would certainly allow sex discrimination and might even allow racial segregation — an understanding of equality to which few of us would want to return.
Finally, anyone looking to resolve our modern constitutional dispute through strict construction has one more problem: The Founders and ratifiers themselves disagreed profoundly, vehemently, on the meaning of their masterpiece. Before the ink on the constitutional parchment was dry, arguments had erupted, not just about minor provisions but about first principles, not just between peripheral figures but within the Revolution’s very core. They argued about how much power the national government should have — to regulate the economy, to supersede state laws, to form a standing army, or to assume debt. They argued about the president’s role in establishing treaties with foreign powers, and about the Supreme Court’s role in determining the law. They argued about the meaning of such basic rights as freedom of speech and freedom of assembly, and on several occasions, when the fragile state seemed threatened, they were not averse to ignoring those rights altogether. Given what we know of this scrum, with all its shifting alliances and occasionally underhanded tactics, it is unrealistic to believe that a judge, two hundred years later, can somehow discern the original intent of the Founders or ratifiers.
Some historians and legal theorists take the argument against strict construction one step further. They conclude that the Constitution itself was largely a happy accident, a document cobbled together not as the result of principle but as the result of power and passion; that we can never hope to discern the Founders’ “original intentions” since the intentions of Jefferson were never those of Hamilton, and those of Hamilton differed greatly from those of Adams; that because the “rules” of the Constitution were contingent on time and place and the ambitions of the men who drafted them, our interpretation of the rules will necessarily reflect the same contingency, the same raw competition, the same imperatives — cloaked in high-minded phrasing — of those factions that ultimately prevail. And just as I recognize the comfort offered by the strict constructionist, so I see a certain appeal to this shattering of myth, to the temptation to believe that the constitutional text doesn’t constrain us much at all, so that we are free to assert our own values unencumbered by fidelity to the stodgy traditions of a distant past. It’s the freedom of the relativist, the rule breaker, the teenager who has discovered his parents are imperfect and has learned to play one off of the other — the freedom of the apostate.
And yet, ultimately, such apostasy leaves me unsatisfied as well. Maybe I am too steeped in the myth of the founding to reject it entirely. Maybe like those who reject Darwin in favor of intelligent design, I prefer to assume that someone’s at the wheel. In the end, the question I keep asking myself is why, if the Constitution is only about power and not about principle, if all we are doing is just making it up as we go along, has our own republic not only survived but served as the rough model for so many of the successful societies on earth?
The answer I settle on — which is by no means original to me — requires a shift in metaphors, one that sees our democracy not as a house to be built, but as a conversation to be had. According to this conception, the genius of Madison’s design is not that it provides us a fixed blueprint for action, the way a draftsman plots a building’s construction. It provides us with a framework and with rules, but fidelity to these rules will not guarantee a just society or assure agreement on what’s right. It won’t tell us whether abortion is good or bad, a decision for a woman to make or a decision for a legislature. Nor will it tell us whether school prayer is better than no prayer at all.
What the framework of our Constitution can do is organize the way by which we argue about our future. All of its elaborate machinery — its separation of powers and checks and balances and federalist principles and Bill of Rights — are designed to force us into a conversation, a “deliberative democracy” in which all citizens are required to engage in a process of testing their ideas against an external reality, persuading others of their point of view, and building shifting alliances of consent. Because power in our government is so diffuse, the process of making law in America compels us to entertain the possibility that we are not always right and to sometimes change our minds; it challenges us to examine our motives and our interests constantly, and suggests that both our individual and collective judgments are at once legitimate and highly fallible.
The historical record supports such a view. After all, if there was one impulse shared by all the Founders, it was a rejection of all forms of absolute authority, whether the king, the theocrat, the general, the oligarch, the dictator, the majority, or anyone else who claims to make choices for us. George Washington declined Caesar’s crown because of this impulse, and stepped down after two terms. Hamilton’s plans for leading a New Army foundered and Adams’s reputation after the Alien and Sedition Acts suffered for failing to abide by this impulse. It was Jefferson, not some liberal judge in the sixties, who called for a wall between church and state — and if we have declined to heed Jefferson’s advice to engage in a revolution every two or three generations, it’s only because the Constitution itself proved a sufficient defense against tyranny.