Freedom Requires the Breath of a Living Constitution

FROM THE ARCHIVES (Daily Nebraskan columns)

Freedom requires the breath of a living Constitution

Jeremy Patrick (jhaeman@hotmail.com)

October 23, 2000

"Is it not the glory of the people of America, that whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrules suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?"
--Alexander Hamilton, The Federalist # 14

Currently, there is considerable controversy among legal scholars (and presidential candidates) over the proper method of interpreting the Constitution.
Liberals tend to favor a "living, breathing" Constitution arguing that its provisions should be construed in light of several factors, including language, history, purpose and applicability to modern life. Conservatives argue for "originalism" or "strict constructionism;" Constitutional provisions should be construed only according to plain meaning and drafters' intent.
The debate seems abstract and academic, but the consequences are very real. Supporters of a "living, breathing" Constitution believe in a fundamental right of privacy, near-absolute protection for free speech, strong separation between church and state and expansive due process for persons accused of crimes. Originalists usually take opposite positions on these issues.
In effect, current controversies over abortion, homosexuality, school prayer, gun control, the death penalty and more all turn on how one approaches the Constitution's meaning.
The originalist position is inviting; it offers the promise of objectivity and consistency - society would be protected against the subjective morality of whoever happens to be on the Supreme Court. Otherwise, originalists believe, the Court becomes a group of unelected Platonic Guardians, imposing their morality.
Noble talk of protection from tyranny sounds nice, but unrealistic: Whatever method of interpretation justices choose, they still have the same power to impose their will, subject only to constitutional amendment, impeachment or death.
The irony of originalism, for all its talk of objectivity, plain meaning and intent, is that it's nowhere to be found in the Constitution. Indeed, the framers would have been terribly arrogant if they had believed that they were setting forth eternal truths for all time.
They intentionally wrote the Bill of Rights in broad terms ("reasonable searches," "due process," etc.) because they knew future judges would face situations they had not foreseen and need to be equipped with tools to protect individual rights.
The framers knew that by the time an oppressed minority had convinced a super-majority of states to pass a Constitutional amendment, it might be too late.
This is why they wrote the Ninth Amendment, which states the people retain rights not explicitly set forth in the Constitution. Originalists believe that the Ninth Amendment is (in Robert Bork's words) an "ink-blot on the Constitution."
As legal scholar Edward Lazarus said, it is "far from obvious why the Constitution, replete with clauses of indefinite content, designed with the evident purpose of applying to unseen and unforeseeable changes in the structure of American society, should be interpreted exclusively by reference to the vision of persons dead for more than 200 years."
Originalism suffers from severe practical problems as well: If the Constitution should be interpreted by framers' intent, who's intent are we speaking of? The actual drafters? The state legislatures that ratified it? The people who elected those legislatures?
How do we even know what their intent was? Records of the time are incomplete; two people often disagreed (as they do now) about the very meaning of a provision they both supported, and the most vociferous and frequently recorded views may be that of persons in the minority on an issue.
Trying to figure out what people who lived two centuries ago thought, or would have thought about an issue they were never faced with, is pure speculation. Judges have trouble simply judging; we should not ask them to be expert historians and mind-readers as well.
Originalism proponents are really working backwards: They know what positions they have on controversial issues and are seeking a process to justify those issues.
Justices Scalia, Thomas and Rehnquist, leading proponents of originalism, are not exactly liberal in their private lives and have frequently used the doctrine in inconsistent ways.
As Lazarus puts it, recent events have "demonstrated to the public what had long since been evident to students of Court history: that originalism is potentially every bit as malleable as other methods of interpretation."
So what is the correct method of interpretation? I don't think there is a correct method. Judges applying the Constitution must bring with them the same tools used in making and applying law in other contexts, such as history, precedent, language, intent and practical effects.
Ultimately, judges must exercise what Justice O'Connor calls "reasoned judgment." As radical as it may sound, at some point we simply have to trust judges to do the best they can and apply the law with both reference toward democratic principles and respect for individual rights.
Handcuffing judges with the chains of history may produce a peculiar kind of consistency, but only at the cost of liberty. I hold tremendous respect for the drafters and ratifiers of our Constitution. But I have my own passions, desires, hopes and dreams - and I will not let them be destroyed by the ghosts of dead men.