Copyright © by Len Holman, 1/21/11
The new Congress began its proceedings by having various members read the Constitution of the United States. There was some consternation and confusion at first because there was a question as to whether the original Constitution should be read, or the liberal-inspired, edited version—you know, the one we use now. They finally decided on the 2nd edition, and read it. Now this is too amusing for me to contemplate and I hope to convey the reason for my hilarity. You see, at least two justices on the Supreme Court are believes in a strict construction of the Constitution, and one is an avowedly, vocally, an Originalist, while the Tea Party followers and others even more conservative have repeatedly stated that it’s the constitution, stupid. If Obama and the Dems would just follow the sacred, immutable text, we would return to Eden—without the serpent. But here was the earnest, serious-about-our-nation’s-moral-fiber congress using a bowdlerized version of America’s Bible. Shocking. But funny.
If the Constitution is sacred text, and if we must stick to its very letter, its very intent, then the Congress needed to read the original—with its counting of slaves as three-fifths of a person and its voting privileges restricted to white males, and no direct election of senators. By the very act of reading the latest incarnation of American scripture, the conservatives acknowledged the legitimacy of constitutional change; they acknowledge that “original intent” or “original meaning” is meaningless if someone wants to get anything done in this century. What this reading verifies is that our Constitution is alive and—if not well—at least not completely dead. When members of the 112th Congress got to reading, did they understand what the document they were reading from was? It wasn’t just a paper written in the 18th Century by Gods who stopped off in the New World on their way to Olympus. It wasn’t written by Divine Fire, burned into parchment. It wasn’t left in the Garden for Adam to transmit to his kids. It was a document written by flesh and blood people who had just fought a war and who wanted something to guide their new government. The operative word is” guide.” They were well-read men, educated, sophisticated and very clear-eyed. Just a quick perusal of the Federalist Papers—arguments in favor of adoption of the document we call the Constitution—shows how skeptical the Founders were. Skeptical of the people, the new government, and especially were they aware that things change and the best laid plans of mice and men oft gang aglee. That’s why the thing wasn‘t etched into stone or engraved in metal, or even carved into the Liberty tree. It’s an idea on paper, and idea about the relationship between the government and the people, and like any idea, it is evanescent, subject to revision or elimination. The Founders knew that, even as they made it difficult to change. But the difficulty was put in to make sure—not that change would never come because the writers wanted everything to stay as they wrote it—but that when change inevitably came, it would be a thoughtful, debated, non-impulsive one. Let’s recall that the Founders lived through some of the most amazing and wrenching changes in American history: From the first feet treading a strange land and the eventual pushing of the natives off the beach, to witch panics, forming of new colonies, revolutions, Indian wars and acquiring new territory and the internecine battles between factions. These people knew their history and knew that nothing stays the same for very long. So they wrote a document intended to be a template, a guide, a pathway toward a future they hoped would be brighter than their present.
It seems that those justices and politicians and various pundits who wish their beloved Constitution was as stiff and immobile as a week-old bologna sandwich are scared to death that the country will change, that the cultural signposts they fantasized would always be there are disappearing and being replaced by new ones—and “new” is scary and uncomfortable to them. The questions are, what would these people have us do? How far back would we have to go? And what sort of country would we live in if we put the ship of state in reverse? As an example, let’s take that Charlton Heston Amendment, the 2nd, which “guarantees” that every man, woman, and child with enough strength to hold up a Kalashnikov or AK-47, can pack a weapon into Wal-Mart and, perhaps, blow away some snotty clerk—unless the clerk is packing, too—in which case the resulting shootout would be part of the constitutional imperative. And did the Founders actually envision citizens of the U.S. practicing quick-draw competitions on the streets of Akron or Fresno? They wrote this Amendment in the context of the memories they all had of an occupying force armed to the teeth, and a yeoman citizenry with few ways to protect themselves. But the intent of this amendment has been expanded and expanded—a change not incorporated into the document, nor derived from it, but coming from the social interpretation of the language, according to what is perceived by the judiciary as the original intent. But original intent is a slippery concept—perhaps a hopelessly juvenile one. Intent is OK if you get a memo from your boss which says, “Make sure the warehouse is cleaned up,” and you can go into her office and ask, “which warehouse—we have three.” Or “cleaned up how? Empty, pallets stacked? Swept?” We can’t, however, ask Madison or Morris or any Founder, “What the hell does this ‘well-regulated militia’ mean in light of the 21st Century?” So SOMEBODY has to guess, has to interpret. Even reading every single piece of writing on the subject can only go so far. Somebody STILL has to, in the final analysis, take an educated guess. And this is what the Founders no doubt intended. Unfortunately “educated” is not the same as “insightful” or even “correct.”
The only way to ensure that the document is being followed according to its original intent is to go back in time and ask. Barring that, we have to assume that the document we currently have is flexible and is subject to various kinds of interpretation, as witness the Citizen United case. Did the Founders really believe that money was speech? That whoever has the most money has the most speech? That this was good for the fledgling democracy and the democracy the country would become? It’s no use blaming “activist judges” or “liberal progressives” or “Tea Party zealots,” because the Constitution is a moving target. There is no going back to 1787, and—contrary to the wishes of the frightened and confused—we are not in Kansas anymore.
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