A Tale of Two Constitutions

(First published in the October 2004 issue of The
American Legion
magazine)

The subject of constitutional interpretation may seem like a topic best fitted
for an ivory-tower debate, but it actually has a very real and dramatic impact
on daily life (as will be demonstrated shortly). In recent years, two competing
viewpoints have emerged.

Probably the first exposure most citizens had to the two views came during
the 2000 presidential debates. When asked what type of judges should be placed
on the bench, candidate Bush responded: “I believe that the judges ought
not to take the place of the legislative branch of government . . . and that
they ought to look at the Constitution as sacred. . . . I don’t believe in liberal,
activist judges; I believe in strict constructionists.” 1 Candidate Gore
countered, “The Constitution ought to be interpreted as a document that
grows.” 2 Gore later stated, “I believe the Constitution is a living
and breathing document. . . . We have interpreted our founding charter over
the years, and found deeper meanings in it in light of the subsequent experience
in American life.” 3 So, the two choices are . . . follow original intent,
or construct a living constitution.

Proponents of a living constitution believe that we should not be bound by
what dead white guys wrote two centuries ago when slavery was legal, women could
not vote, and horses were the fastest means of transportation. Instead, we should
live under a constitution that is alive and vibrant, reflecting today’s values
and beliefs.

Such rhetoric makes a living constitution sound appealing, but it is actually
a complete misportrayal of the difference between the two philosophies. In reality,
both accommodate an evolving society; in fact, under the strict construction
(or originalist) viewpoint, Article V of the Constitution requires
that the Constitution be a living document. The real difference between the
two approaches is not whether the Constitution should evolve,
but rather how those changes should occur – and who
should make them.

Under the living constitution approach, history and precedent are largely irrelevant;
instead, unelected judges create policy to reflect modern needs through the
constitution they themselves write. As explained by Chief Justice Charles Evans
Hughes:

We are under a constitution, but the constitution is what the judges say
it is. 4

Ironically, under this modern approach, judicial policy-makers are regularly
out of step with modern society. For example, although 80 percent of the nation
currently opposes flag desecration, living constitution judges have ruled that
the people are wrong on this issue and that the flag cannot be protected. Similarly,
90 percent of citizens in the federal Ninth Circuit supported keeping “under
God” in the Pledge of Allegiance, but their living constitution judges
pronounced them wrong.

Equally striking is the number of recent occasions in which living constitution
judges have overturned statewide votes wherein the People clearly expressed
their will (e.g., striking down votes in New York and Washington that banned
physician-assisted suicides; in Arkansas and Washington that enacted term limits;
in Missouri that rejected a tax increase; etc.).

Each of these popular votes would be valid under original intent because in
that approach, the People — not unelected judges — determine their
policies and values. And whenever the People want a change, they do not rely
on a judge to make it; instead, they update their Constitution to reflect their
views — as they have done on over two-dozen occasions. Samuel Adams pointed
out the strength of this approach:

[T]he people alone have an incontestable, unalienable, and indefeasible right
to institute government and to reform, alter, or totally change the same when
their protection, safety, prosperity, and happiness require it. And the federal
Constitution — according to the mode prescribed therein [Article
V] – has already undergone such amendments in several parts of it as from
experience has been judged necessary. 5 (emphasis added)

This unique American guiding principle made its appearance in the Declaration
of Independence as “the consent of the governed.” The State constitutions
penned after the Declaration reiterated this precept — as, for example,
in Massachusetts in 1780:

All power residing originally in the people and being derived from them,
the several magistrates and officers of government vested with authority —
whether Legislative, Executive, or Judicial — are their substitutes and
agents and are at all times accountable to them. 6

The same axiom was then established in the Constitution through the three-word
phrase that begins its text: “We The People.”

Today’s living document proponents decry this approach as majoritarianism –
the so-called “tyranny of the majority.” Perhaps, but what is the
alternative? Minoritarism? That a small group should be able to annul the will
of the People and enforce its own desires upon the masses? Such an option is
unacceptable under original intent. As explained by George Washington:

The fundamental principle of our Constitution . . . enjoins [requires] that
the will of the majority shall prevail. 7

Thomas Jefferson agreed:

The will of the majority [is] the natural law of every society [and] is the
only sure guardian of the rights of man. Perhaps even this may sometimes err.
But its errors are honest, solitary and short-lived. 8

Does this original principle therefore mean that minorities are to be disregarded
or trodden upon? Of course not. As Jefferson further explained:

Though the will of the majority is in all cases to prevail, that will to
be rightful must be reasonable — the minority possess their equal rights
which equal law must protect. 9

While the minority is not to prevail, with its constitutional guarantee of
“free speech,” it does have the “equal right” to attempt
to persuade the majority to its point of view. The minority does have equal
rights, but equal right is not the same as equal power; the minority is never
the equivalent of the majority and should never exercise control over it.

Living constitution judges, however, view the majority as inherently wicked
and depraved — always seeking deliberately to violate the rights of the
minority with only judges standing between the minority and total annihilation.
Therefore, under this anti-majoritarian view, the greater the public support
for a position, the more likely a living constitution judge is to strike it
down.

Yet American history has proven that the best protector of minority rights
is not the courts but rather the People. For example, former slaves received
their constitutional rights not from the courts but by the majority consent
of non-slaves; women were similarly accorded the constitutional right to vote
not by the courts but by the majority approval of men; the constitutional rights
accorded to the poor by the abolition of the poll tax came at the majority approval
of those who were not poor; and the constitutional right allowing eighteen-year-olds
to vote was given by the majority approval of voters not eighteen-years-old.
Additionally, all of the constitutional protections for individuals and minorities
established in the original Bill of Rights (e.g., speech, religion, petition,
assembly, bearing of arms, etc.) were also enacted by majority consent. In other
words, all minority rights in the Constitution have in all cases been established
by majority consent.

In fact, the courts have a very poor record of protecting minority rights.
Although living constitution proponents love to point to the 1954 Brown v.
Board of Education
decision that ended segregation as proof that the courts
protects minority rights, they conveniently forget to tell the rest of the story.
In 1875, Congress — by majority vote — banned racial segregation,
but in 1882, the unelected Supreme Court struck down that anti-segregation law;
in 1896, the Supreme Court reaffirmed its pro-segregation position; but in 1954,
the Court finally reversed itself and struck down segregation – eighty years
after “We The People” had abolished segregation.

It is not surprising that judges are fallible, for as Jefferson pointed out:

Our judges are as honest as other men, and not more so. They have —
with others — the same passions for party, for power, and the privilege
of their corps. . . . And their power the more dangerous as they are in office
for life and not responsible — as the other functionaries are —
to the elective control. 10

Certainly, the majority will sometimes err, but as Jefferson observed, “its
errors are honest, solitary, and short-lived” and can be remedied by “elective
control.” However, the errors created by judicial decisions are more severe
and long-lasting.

While living document enthusiasts disparage strict constructionists as being
narrow or restrictive, Justice Antonin Scalia counters:

Don’t think the originalist interpretation constrains you. To the contrary,
my [originalist] Constitution is a very flexible Constitution. You want a
right to abortion? Create it the way all rights are created in a democracy:
pass a law. The death penalty? Pass a law. That’s flexibility. 11

Scalia points out that it is just the opposite with living constitution judges:

They want the whole country to do it their way, from coast to coast. They
want to drive one issue after another off the stage of political debate. 12

In short, then, the living constitution approach empowers an unaccountable
elite to make decisions on behalf of the People; original intent empowers the
People themselves.

[For more information on this topic please see David Barton’s
book Restraining
Judicial Activism
.]


Endnotes
1. Commission on Presidential Debates, “October 3, 2000 Debate Transcript” (at http://www.debates.org/index.php?page=october-3-2000-transcript).

2. Commission on Presidential Debates, “October 3, 2000 Debate Transcript” (at http://www.debates.org/index.php?page=october-3-2000-transcript).

3. PBS.org, “Online News Hour: Al Gore,” March 14, 2000 (at http://www.pbs.org/newshour/election2000/candidates/gore_3-14c.html).

4. Charles Evans Hughes, The Autobiographical Notes of
Charles Evans Hughes
, David J. Danelski and Joseph S. Tulchin, editors (Cambridge:
Harvard University Press, 1973), p. 144, speech at Elmira on May 3, 1907.
5. Samuel Adams, The Writings of Samuel Adams, Harry
Alonzo Cushing, editor (New York: G. P. Putnam’s Sons, 1904), Vol. IV, p. 388,
to the Legislature of Massachusetts on January 19, 1796.
6. A Constitution or Frame of Government Agreed Upon by
the Delegates of the People of the State of Massachusetts-Bay
(Boston: Benjamin
Edes & Sons, 1780), p. 9, Massachusetts, 1780, Part I, Article V.
7. James D. Richardson, A Compilation of the Messages
and Papers of the Presidents, 1789-1897
(Published by Authority of Congress,
1899), Vol. I, p. 164, from the “Sixth Annual Address” of November 19, 1794.

8. Thomas Jefferson, The Papers of Thomas Jefferson,
Julian P. Boyd, editor (NJ: Princeton University Press, 1961), Vol. XVI, p.
179, “Response to the Citizens of Albermarle,” February 12, 1790.
9. James D. Richardson, A Compilation of the Messages
and Papers of the Presidents, 1789-1897
(Published by Authority of Congress,
1899), Vol. I, p. 322, from Jefferson’s First Inaugural on March 11, 1801.
10. Thomas Jefferson, Writings of Thomas Jefferson,
Albert Ellery Bergh, editor (Washington D. C.: Thomas Jefferson Memorial Association,
1904), Vol. XV, p. 277, to William Charles Jarvis on September 28, 1820.
11. About, “Scalia on the Constitution” (at http://usgovinfo.about.com/library/weekly/aa022701a.htm).

12. About, “Scalia on the Constitution” (at http://usgovinfo.about.com/library/weekly/aa022701a.htm).

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