Understanding Our Constitution: #4 - Be Wary of Those Who are Certain What It Says
In recent months, we have witnessed a typical surge of certainty about the Constitution. On the political right, this has included the President's claim that it does not guarantee "birthright citizenship" and a federal judge's recent ruling that the Affordable Care Act is unconstitutional. On the political left, this has included counters to these claims of constitutional interpretation as well as traditional charges that the Second Amendment does not prevent restricting possession of certain types of guns. History suggests we should be wary of those who are so certain.
The first act of the First Congress in 1789 required all federal and state officials to take an oath to support the Constitution. Shortly thereafter, James Madison, a representative from Virginia, proposed the creation of departments of war and foreign affairs, with the secretary of each to be appointed "with the advice and consent of the Senate, and removable by the president." The last phrase appeared nowhere in the Constitution, leading Congressional Antifederalists to oppose it. Removal by the president weakened the Senate, they charged, which having consented to the appointees should have to agree to their removal. Resolving the issue would take weeks. Everyone who had taken the oath had their own interpretation of what the Constitution said.
The question of what the Constitution says continues. Proponents or opponents of policies, programs, and laws regularly charge that these are - or are not - constitutional. Where the executive and legislative branches cannot sort this out, the courts jump in, and then people argue about their interpretation. But isn't what the Constitution says clear?
There are bipolar answers to this question. "Originalists" believe we can know by looking at what the Constitution meant in the words and context of the times, as understood by those who wrote it. Advocates of a "living Constitution," argue this is impossible. The Constitution must be interpreted more flexibly, they claim, given changes in society, its values, norms, and needs.
Madison, its guiding architect, could argue for what the Constitution said better than most. Yet, writing in Federalist #37, he acknowledged "that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces the legislative, executive, and judiciary." One of the chief reasons, he noted, is that what words mean is imprecise: "No language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas."
This leaves two unsatisfying choices. We can believe we know with certainty what the Constitution meant in 1787, or we can argue that it means whatever we decide it means today. The first is often impossible. The second can be dangerous.
There are alternatives. The first is the amendment process, which has been used successfully 27 times. The Bill of Rights was the first such effort, coming after the Anti-Federalists insisted that the rights protected by the Constitution had not been made sufficiently explicit.
The second is study, beginning with a careful effort to understand the words of the Constitution, the convention's debates, the Federalist and Antifederalist arguments during ratification, the history of the time, and the political philosophy of the founding generation. But study must also include the amendments and actions through history of Congress, the president and the courts.
Still, the effort can't end there, since disagreement on interpretation will not end there. What must follow is dialogue. Yet dialogue is impossible without emotions, which can warp our thinking to support preferred conclusions. Diversity of views and openness to that diversity form the only antidote to the dangers of self-interested interpretation.
All this requires care. Starting with a political agenda designed to achieve a predetermined conclusion is not careful. Such 'weaponizing' of the Constitution is unacceptable. Picking out words, twisting interpretation to justify positions, and acting as if the result is unassailable is a path to weakening the Constitution. We can't just claim that the Constitution means whatever we want. Sadly, that is what happens when human nature is more dominant than humility.
We will never reach complete agreement on what the Constitution says in some cases, but government officials who take an oath to "support and defend" it have a responsibility to protect it against misuse - by themselves and others. The rest of us have a responsibility to act reasonably. Abusing the Constitution in its name undermines trust in the charter that defines and binds us as Americans. The result of extreme, often partisan, certainty about what the Framers themselves were not certain, and could not be, can tear us apart.
Photo Credit: Becca Kumar
