At my age, “constitutional issues” usually involve medicine, not the law, if only because the other kind are so complex that thinking about them makes my head hurt. A boyhood reading of The Great Rehearsal: The Story of Making and Ratifying the Constitution of the United States first suggested why. Author Carl Van Doren took readers back to the sausage factory that was the first constitutional convention. The delegates blended lofty principle and sordid political compromise in a document that (as Dahlia Lithwick recently put it) “is sufficiently open-ended to infuriate all Americans,” in part because its language “is always going to raise more questions than it answers and confound more readers than it comforts.”
No such ambivalence plagues those of my fellow countrymen on the U.S. political right who insist that the Constitution is a kind of how-to guide for republican government that lays out the solutions to all our vexing social disputes. This must puzzle most of our U.S. Supreme Court justices, who were charged by the Founders to make sense of this muddle. There was a lot the Founders did not get right the first time, and the original document has had to be much amended as times have changed, like a grand old house that has been lived in for more than 200 years. The original parlor is now a TV room, the carriage house is a granny flat, the maid’s room is where the kids play computer games. The place is hard to recognize from the way it looks and practically impossible to recognize from the way its occupants use it.
Wholly apart from the impossibility of divining the intentions of the Founders at this date, do we want to? The political right approaches the Constitution much as the fervent Christians among them approach the Bible – as holy writ, delivered of the Almighty. (Thus the many references to it as a “sacred” document.) They are more right than they know. As did the authors of the Bible, the men who wrote the Constitution often failed to explain themselves clearly. A much-cited example is the phrase “cruel and unusual punishment,” which appears in the Eighth Amendment. The words meant one thing in 1789, when the newfangled guillotine was offered as a less cruel way to kill people (as indeed it was, compared to, say, being broken on a wheel). Today, death itself is considered cruel and – as administered by the U.S. justice system – unusual.
Of course the Founders could not anticipate today’s world. Making their language fit modern social and economic realities have resulted in certain clauses being stretched into nearly unrecognizable shapes by the courts. That is not always to be regretted, as was shown during the civil rights era. It seems appropriate for the high court to have extended the 14th Amendment’s guarantee of due process to other outcast groups, thus invoking a principle novel in U.S. history, which is that a law that applies to African-Americans ought to apply to everyone else too.
The regrettable Justice Scalia – a justice whose political opinions masquerade as judicial principles – disagrees. In a recent address, Scalia insisted that it is inappropriate to apply the 14th Amendment to (for example) guarantee equal rights for women, since that amendment was intended to apply only to freed slaves.
Of course social changes ought not to be dictated by courts, but legislated by elected representatives reflecting majority views. The problem in practice is that legislating social changes only works when the process of legislating functions as it ought to. The Founders put into their new Constitution protections in the form of amendments to protect minority opinion from the tyranny of the majority; they made no provision for the tyranny of the rest by a minority. A determined minority can obstruct and confuse and frustrate the will of the majority. Filibustering senators prevented passage of meaningful civil rights laws for years. In the 1970s opponents of the Equal Rights Amendment to the Constitution contrived a rules change that prevented the Illinois legislature from ratifying the ERA even though a majority of its citizens backed it.
It’s all too confusing for a lot of us. We, the People, are famously uninformed about the framework set up for our national government. I won’t cite all the opinion polls suggesting that majorities of citizens don’t know (to pick one example) that the Bill of Rights is part of the Constitution. Such ignorance runs especially deep among tea party-ers who have convinced themselves that the Constitution as written – and rewritten, and rewritten – is a bulwark against federal power. In fact the U.S. Constitution was adopted to curtail the power of the several states. That’s because their rivalries – over commerce, taxation, even national defense – rendered the country ungovernable under the Articles of Confederation that had been adopted in 1777 and which served in effect as the nation’s first constitution.
The present Constitution is in short a blueprint for a more potent centralized government. But don’t tell your friends on the right. You know how they get upset.
Contact James Krohe Jr. at firstname.lastname@example.org.