The Politics of the Constitution

TIME’s Alex Altman described the Congress’ opening the 112th Congress with a reading of the Constitution as “fetishism” in his post entitled “The Cult of the Constitution.”

Others have ridiculed the Republicans’ recitation of the Constitution as a “gimmick,” an “obvious sop to the tea party movement,” and a exercise for a “document whose recent relevance is due largely to the ideological and sartorial interests of the Tea Party.”

Pete Wehner, of the former Bush Administration, says in Commentary Magazine that “for many modern-day liberals, the Constitution is, at best, a piece of quaint, even irrelevant, parchment.”

Dahlia Lithwick (another writer who describes Tea Partiers as having a “fetish for the Constitution”) says in Slate that “unless Tea Party Republicans are willing to stand proud and announce that they adore and revere the whole Constitution as written, except for the First, 14, 16th, and 17th amendments, which totally blow, they should admit right now that they are in the same conundrum as everyone else: This document no more commands the specific policies they espouse than it commands the specific policies their opponents support.”

Cynic’s view
What exactly is the argument here?  Why is this a divisive topic?  Well, it’s not really divisive, it’s political.  No one is saying that the Constitution ought not to govern our country, or that we ought to do away with it altogether.  Neither are they saying that the Constitution isn’t sufficient to govern the country, though Ezra Klein of the Washington Post does argue that the Constitution is impossible to understand because it’s over 100 years old:

Every politician is trying to say that theirs is the party of the Constitution, and the other party has distorted the Constitution.  Everyone reveres the Constitution, but tries to use it to snipe at the other party.

Living document vs. originalism
But there is a legitimate difference of opinion here.  There are two camps: one that says that the Constitution should be a document that adapts to the changing environment that it’s in; the other that says that the Constitution ought to be interpreted according to the original intent of the framers.

The first camp, those who believe the Constitution is “living document,” believe that the founders of the country could not have foreseen some circumstances that confront us today (for example, gay marriage or abortion), and the Constitution needs to be interpreted to deal with those circumstances when they come up.  So, when the abortion issue came up in 1973 in Roe vs. Wade, the U.S. Supreme Court decided that the 14th amendment of the Constitution provided for a right to privacy:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The second camp, the “originalist” camp, believes that the Constitution ought only to say what it says and no more, and ought to be interpreted (by both Congress and the Supreme Court) strictly by what the founders meant, which necessarily limits the power of the Supreme Court.  This led Byron White, a justice on the Supreme Court in 1973, to write,

“I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand.”

The Verdict
For Christians, the problem with the “living document” view is that it places certain individuals above the law: those individuals that are charged with meting out justice.  The Bible, in several places, indicates that everyone is to be subject to the (civil) law, even the leaders (kings, judges, etc).  Here’s one example from Acts, where Paul lights into a judge who is judging him improperly:

“God is going to strike you, you whitewashed wall!  Are you sitting to judge me according to the law, and yet contrary to the law you order me to be struck?” (Acts 23:3)

Here, Paul is saying that the judge is under the law (human law, not God’s law).  If one takes the “living document” view of the Constitution, then they are saying that the justices of the Supreme Court are not under the Constitution, but they create the Constitution.

Dahlia, I am able to stand proud and announce that I revere the whole Constitution as it is written, including the 1st, 14th, 16th, and 17th amendments.  If I want to change anything about the Constitution, I’ll advocate for a Constitutional amendment, instead of running to nine unelected judges, asking them to say it’s OK to pervert its meaning.  You should, too.

Do you think the Constitution is a “living document”?  Or are you an “originalist”?

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  • Broc

    First of all I find it a bit funny that someone from the Bush administration would say;
    “For many modern-day liberals, the Constitution is, at best, a piece of quaint, even irrelevant, parchment.”
    Considering the fact it was the Bush administration that started a war in Iraq under the false pretence that they were a threat to national security because they possessed WMD, implemented warrantless wiretapping, and torturing and detainees then defends it by saying “the lawyers said it was legal.” Let’s not pretend that Republicans, especially someone from the Bush administration, solely defends the Constitution.
    1st,14, 16th, and 17th amendments… Republican’s have set fourth an agenda of wanting to alter statutes in the 14th amendment so that children born IN the U.S. to parents of illegal immigrants would NOT be U.S. citizens.

    Living document vs. originalism….If you would like to apply the original constitution only as it was intended by the founding fathers that would be fine if you could gather all the founding fathers up and ask them all how they would like each item in the constitution to be evaluated. They problem is we don’t know what they intended we can only know what they wrote and that can be interpreted in many ways which is why when the supreme court does rule on a constitutional issue it is almost always split. Even if we all were looking to interpret the constitution as the founding father wanted who is to say they would all be in agreement on the issues.

    Secondly your opinion that somehow the Supreme court is above the law is wrong, everyone is subject to the law, which is what your Acts reference points out, if the a member of the supreme court was to commit a crime they like everyone else would be subject to the criminal justice system. Paul who was a citizen of Rome, had the right not to be flog or beaten without a “proper trail” (Acts 22:25). The Sanhedrin in Acts 23 was not interpreting the law, or speaking to its validity, he was directly violating the law by order Paul to be hit, and that is what Paul was pointing out.
    However their authority to decide constitutionality is derived from the Constitution in Article III and the through the exact balance of power the constitution creates in its 3 branches of government.
    Not every issue of constitutional contention needs a constitutional amendment, to remove the courts as the body which interprets the law would be to ignore a large part of the same constitution you are claiming to defend…. I was not brevis…sorry…lol. Feel free rebuttal one point at a time.

    • Bob

      Re: Starting wars – the Constitution gives the authority to declare war to Congress, and that’s the way that it should be done. However, Administrations of both parties have started “engagements” outside of this process, to the detriment of the Constitution, I think. But to attack someone’s argument because of their affiliation to someone else is unhelpful… it’s akin to an ad hominem attack. But, really, this side-argument about who started what “war” illegally is not germane to the discussion on the Constitution.

      Re: Peter King – Republicans have NOT set forth an agenda that wants to alter the 14th amendment… Peter King has (and even he argues that he’s not trying to change the Constitution, but you and I probably both would argue he is). And he certainly does not reflect MY view on immigration. I want immigration to be more open, because I believe that as many people who want to come to America should be able to come to America, as long as they come under the rules provided by the U.S. for immigration. Also, I will concede to you that there are Republicans, as well as Democrats, who hold to the “living document” theory of the Constitution, but that does not make it right. This argument, too, is tangential at best.

      Re: originalism – there is sufficient writings of the founders of our country on the Constitution to determine what they were thinking, and besides, a clear reading of the Constitution is enough to determine intent in many or most cases. There is enough historical evidence to interpret the Constitution as the founders intended… that’s really not being argued about. The reason why the Supreme Court is almost always split is because of this issue of originalism vs. living document. Some of the justice on the Supreme Court would like to use other sources to determine what the Constitution says: their own reasoning, foreign law, etc.

      Re: above the law – if the Supreme Court is able to change what the Constitution says whenever it pleases, then it is, by definition, above the law. How can you explain it otherwise? If the Supreme Court can rule one way at one point in time, and then another 20 years later, how can they NOT be above the law? Sure, if they commit murder, that means that they’re under PART of the law, but that doesn’t mean that they’re under the WHOLE law. What’s that verse from the Bible that says if you’re guilty of transgressing part of the law, you’re guilty of the whole law? If they can bend the Constitution to their own way of thinking, doesn’t that mean that they’re not under the law? They’ve created another basis for judgment other than the Constitution: themselves.

      Re: Article III – Does Article III actually allow for the Supreme Court to decide the constitutionality of Congress’ legislation? Does it allow for judicial review? Or does it allow for only limited judicial review? Until 1801, justices on the Supreme Court did not have the power of judicial review. Does the principle of judicial review then apply to ALL legislation, or just legislation that deals with a direct contradiction between a legislative act of Congress and an article of the Constitution? Can you cite the section of the Constitution that allows for judicial review for ALL legislation?

      Where in Article III does the Constitution state that the ultimate authority for judging constitutionality (or rightness, or moral-ness) should reside with the Supreme Court?

      I would argue that removing from the Courts the power to INTERPRET the laws does not ignore the Constitution (as you contend), but rather fulfills its intent. Article III says nothing about the interpretation of laws, but only judging based upon those laws. If a law is unclear, then the courts should not decide what was meant, but should say that it’s unclear, and return it to the legislature for clarification.

      I agree with you when you say that not every issue of constitutional contention needs a constitutional amendment. The Constitution is not a document that speaks to every situation. It’s a document that provides the framework for our society, and leaves the VAST majority of the detail work to the federal legislature and to the state legislatures. The details need to be decided by representatives that are elected by the people, not by unelected judges that serve in lifetime positions. THAT was the intent of the Constitutional framers. The intent of the founders of our country was to put the people in charge, not a small group of powerful people (remember, they were just getting out from under the thumb of King George III).

  • Broc

    Staring wars…my only point in that paragraph was to highlight the fact that Republicans can’t crown themselves defenders of the Constitution now while just 2 years ago it was business as usually in Washington. If they want to play to the base that is fine just don’t expect the rest of us to buy it.

    14th Amendment… Yes they are trying to change the law, they use semantics to try and label it something else but it seems that is what they are doing.

    Originalism/Living… The Constitution is not now nor will it ever be perfect. Since it isn’t perfect it’s not outrageous to me that it be may require change. There is only one perfect writing. One was written by man and is flawed the other is inspired by God. Careful not to confuse the two.

    The Supreme Court interprets legal issues as they are brought before the court because other lower courts failed to resolve the issue, it does not “change what the Constitution says whenever it pleases”. I am not sure where your distain for the Supreme Court is coming from but they are not lording over the constitution deciding what it is and isn’t on a whim, The Supreme Court hears a case which is presented to it and based on the merits of the case decides whether it is legal or not according to other case law and yes their own expert opinions, which is why they have to be appointed, vetted, and confirmed. Why is one man’s legal opinion better than others? If you wanted to go by the founding fathers intent you would only be replacing a 200 year old man’s opinion for another’s, it would still be man’s flaw opinion. The founding fathers were not inspired by God or somehow special, they weren’t immune to error; they were people just like the ones on the Supreme Court.

    Article III – I don’t want to debate Article III too much because I don’t know enough about it to accurately debate the details of how it impacts the Supreme Court….if only we knew a lawyer… however a few days ago I did order “Scorpions” The Battles and Triumphs of FDR’s Great Supreme Court Justices, which from what I am told is where everything to seem to dislike about “big government” began. I’ll get back to you on this one after I read it.

    “If a law is unclear, then the courts should not decide what was meant, but should say that it’s unclear, and return it to the legislature for clarification.”

    My understanding of the 3 branches of government basically goes like this Legislative Branch –writes the bills, Executive Branch – Signs bills into law, and enforces the law and Judicial Branch- Interprets and explains the law. So there is my school house rock impersonation. I don’t believe it’s the Legislative Branch’s jurisdiction to “clarify” the law. That is the responsibility of the courts, as I understand it.

    “The details need to be decided by representatives that are elected by the people, not by unelected judges that serve in lifetime positions. THAT was the intent of the Constitutional framers. The intent of the founders of our country was to put the people in charge, not a small group of powerful people (remember, they were just getting out from under the thumb of King George III”).

    I think you are very wrong here, sorry not only do I not want some “elected official” whose judgment would be effected by getting reelected not what is legal deciding issues, but also may have absolutely ZERO expertise or knowledge of the law. Not to mention that fact that I don’t believe you have any constitutional support for the congress deciding constitutional issues. Really you want Dennis Kucinich to have a say in constitutional matters?lol

    “Jurisdiction. According to the Constitution (Art. III, §2): “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public Ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;—between a State and Citizens of another State;-between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”

    • Bob

      I’m not saying that Congress should decide constitutional issues; I’m saying that Congress ought to write the laws. Strictly speaking, what you’re saying is correct, and I concede that the Supreme Court has some authority to decide the consitutionality of some things. What I’m saying is that if Congress writes a law, then the Supreme Court ought to honor that law, as long as it expressly doesn’t contradict the Constitution (in that sense, they can decide constitutionality). But their ability to decide constitutionality needs to be more limited than what it is today. There are issues that the Constitution does not address that need to be left to the legislature to decide (either the state legislature or the federal legislature). I wish that people at all levels of the government would exercise restraint. There are certain things that are not under the jurisdiction of the federal legislature, or the federal Supreme Court. The Supreme Court and the Congress ought to exercise restraint and say, “This is not an issue for us to decide,” and leave it to the state legislatures to decide. The Executive branch needs to exercise restraint and say, “This is not an issue for the federal government.”

      The whole idea of separation of powers is a FANTASTIC idea (and I think you would agree). But it’s not just a separation of powers between the Executive, the Congress, and the Supreme Court. This separation of power also includes state governments (executive, legislative, and judicial) and local governments (executive, legislative, and judicial). When there is a proper distribution of power between ALL the levels of government, then the people don’t get screwed.

      The Constitution sets out the framework for such a wide distribution of government. It sets out checks and balances between the three branches of the federal government, and also gives each branch specific things to do (as you said in your school house rock impersonation; though it was a bit simplistic, it gets the job done). But it also limits the power of the United States government, saying, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” I think the federal government has strayed far outside its bounds in recent years in this respect (and I’m not just including the Democratic administrations in that statement).

  • Broc

    “What I’m saying is that if Congress writes a law, then the Supreme Court ought to honor that law, as long as it expressly doesn’t contradict the Constitution”

    I am afraid that you aren’t giving credit to our judicial system as a whole. If the Supreme Court has a case brought before it which is a constitutional challenge of a law, it has already been brought before several other local/federal courts and judges have chosen either, NOT to rule or the ruling they did give has legal grounds for appeal. Here is a link I found which laid out the process in common terms. From what I am reading here your call for restraint is a good one considering the Supreme Court gets over 7,000 requests per year to hear cases.

    “This separation of power also includes state governments (executive, legislative, and judicial) and local governments”

    I completely agree that states have their own power to govern and make laws, but since those states are a part of the United States the States its authority to govern itself is subordinate to the federal government authority to government the country. Example: Many people argue that gay marriage is an issue for the states, and that people in there own states should be able to decide if they want to recognize gay marriage or not when it does eventually come down the line. I disagree, for something as fundamental as marriage and all the legal rights that come with it. This is not something that should be recognized by some and not by others when you cross a state border.

    “I think the federal government has strayed far outside its bounds in recent years in this respect (and I’m not just including the Democratic administrations in that statement).”

    I agree that the Federal Government, most of the time with the best intentions, has grown larger in the past 20 years and whether or not it has been a good thing is a matter of opinion; however most of what the government has been doing is reacting to the lack of responsibility, integrity, and safety which has been going on in the private sector. If business wants less regulation and less oversight, they need to act more responsibility. They need to be THEIR OWN regulators, not see how much they can get away with before someone finds out. From Wall Street trading, unsafe work environments, food contamination, and general “bottom line” business practices….Look at it like this, if the government is Mom and Dad, and the private sector is a teenager; the teenager will get more responsibility when the teenager acts like he/she can handle it. If not then Mom and Dad will continue to oversee things. I would be much more likely to support deregulation and “let the private sector work” ideas if it acted more responsibly.

    • Bob

      Your argument regarding marriage doesn’t hold up. Yes, marriage is fundamental, but you can’t logically say that because marriage is fundamental, it should be uniform across the United States. If you make that argument, then you would logically also have to say that because marriage is fundamental, then its regulation should be codified world-wide, not just in the U.S. In essence, you’re saying that local groups of people shouldn’t have control over the fundamentals of their society. You’re also saying that because marriage is such a fundamental issue, then we should ignore that the Constitution says that these things should be left to the states, and deal with it at a federal level. Or, are you saying that we should have a constitutional amendment in order that the federal government can deal with it?

      I agree with you that the government, to an extent, needs to regulate. The capitalist system is a system that acknowledges that most things will be better when people act in their own interests (a market-based system). There are downsides to that system as well, as you mentioned above, when people take advantage of others. But what you’re saying is, on the one hand, “I don’t want Congressmen, like Dennis Kucinich, to have a say over constitutional issues,” but on the other hand, “I’d like Congressmen, like Dennis Kucinich, (of which there are only 535), to have ultimate control over millions of businessmen, because none of them can be trusted to do the right thing.” How are those views consistent?

  • Broc

    Wow slippery slopes get over worked in debates, somehow you got from the federal government possibility recognizing gay marriage or not, to a world-wide law that would affect the jungles of Congo and the Middle East….that is one steep slippery slope. My point of that is to say that IF a state recognizes gay marriage and the couple travels across a state border their rights shouldn’t be lost because they crossed a border. We live in the UNITED STATES or America, not the loosely associated States of America. But if I truly believe this debate is coming no matter what either of us think. The repeal of DADT was the first domino….but we are way off topic. What were we talking about???LOL

    How are those views consistent…. Those views are consistent because they are in response to two completely different circumstances. One being the view that Congress shouldn’t be the ones to decide what is constitutional because they are not experts of law; the other being should congress vote to increase regulation by OSHA, or FDA or other regulatory bodies. They are consistent b/c congressmen won’t be doing the oversight because that is not their field of expertise, however they can vote to further empower or add regulative power to agencies which do that. I hope makes things as clear as mud.

    Anything about the Supreme Court….

    • Bob

      Mine was not a slippery slope argument. A slippery slope argument argues that one step will lead to another, which will lead to another, which will lead to another, which mine was not. Mine can be summarized as this:
      1. States are a part of the United States
      2. The United States are part of the world.
      3. You say that, because an issue (marriage) is too big to be reserved to the states, it should fall to the United States.
      4. If you say that, why can’t you say that the issue is too big to be reserved to the United States.

      You’re saying that the matter of marriage it too big for each state to handle, and I’m saying that that’s a false premise. My argument was not an argument from a slippery slope.

      Re: the other thing… so you’re OK with one constitutional entity being involved with constitutional issues, but not another?

      I guess my point was… and this gets back to one of the original arguments (I guess)… power should be as dispersed as possible. When Congress (or the Executive, or the Supreme Court) holds too much power, the citizenry ends up being ruled by dictat/fiat. The United States was meant to be united, yes, but it wasn’t meant to be ruled solely by the federal government–the Supreme Court or otherwise. A strict reading of the Constitution (by the Supreme Court) ensures the separation of powers.

      My argument was one

    • Bob

      The fewer the people that hold power in a governmental system, the more likely it is that the freedom and liberty of the people is abridged.

      Conversely, the more people that hold power in a governmental system, the more likely it is that the people will be free.

    • Bob

      My argument is that the issue of marriage should be decided at a state level, because I believe that the closer government is to the people, the more accountable it is.

      Your argument is that the issue of marriage should be decided at a federal level, and I’m not sure I understand the reasoning behind that, which brought about my question. If you believe that marriage laws should be uniform, then why not have a world-wide marriage law? Why would you not advocate that? Why can we not have different marriage laws from one state to another, but we can from one country to another? It’s a logical question to ask (from my perspective). We have other laws that are different from state to state, and you don’t have a problem with them being different.

  • Broc

    OK a lot there, I’ll try to be as concise as possible.

    Marriage issue…. Marriage is the fundamentally cornerstone of the family, for me the idea that if I travel outside of Illinois and my marriage would no longer valid is ridiculous, and that is absurd for anyone. Now I did NOT say that all states would or should have to have the exact same marriage laws. However I believe a foundation recognizing or not recognizing gay marriage should take place on the federal level. Example: Abortion was an issue that was taken to the federal level, now do all states have the same abortion laws?…no not at all, however the foundational or basic outline of the law is there at the federal level. I hope I did not over simply so much its meaning did not come across. Now to your world-wide question, I don’t quite follow the “logic” there however we are the United States not the world-wide governing body (even though sometimes we act like the world police….different issue), our laws govern over our borders not other cultures or countries.

    The fewer the people that hold power…. Totally agree in general principal

    Anything about the Supreme Court….

    • Bob

      About the Supreme Court… I’m not sure what the open questions are, but here’s how I would tie it into the argument I’ve been making (and how it ties into my original post): Because I believe that power should be dispersed between as many people as possible (for greater accountability for politicians and freedom for the people), I believe that the Supreme Court should take a stance of strict interpretation of the Constitution, because this lends itself to greater separation of powers, and gives more power back to the people.

      Re: Marriage – when you travel outside of Illinois, your marriage is not invalid. Other states recognize marriages issued in other states.

      Re: Abortion – yes, there is a foundation of the same law, because the Supreme Court acted. The states are not allowed to make laws now that ban abortions (within the limitations set by the Supreme Court). The Supreme Court was curtailing the legislative power of both the federal legislature and the state legislatures in that ruling, and consolidating power within the Supreme Court. It was curtailing legislative power by using a very loose interpretation of the Constitution, which stems from the “living document” theory.

  • Broc

    Very nicely done…tying those things all back together!

    Marriage…you are right my marriage is not invalid however right now that is the case for married gay couples who go to a state which doesn’t recognize gay marriage. Which is why I think it should be settled at the Federal level and I believe it is inevitable that the issue will be brought to the Supreme Court.

    “curtailing the legislative power”… Generally, I personally, do not believe that when the Supreme Court rules on a case they are curtailing or subverting anyone else’s power. I believe they are simply exercising their own authority. However I believe that is simply a difference of opinions or viewpoint. I don’t think either of use have the legal knowledge to correctly debate that issue….well I KNOW I don’t…lol

  • Broc

    Parker/Spitzer clip that I thought you would enjoy;

  • Broc

    Thought you find this intersting regarding the Sumpreme Court….

  • Andrew Smith

    The Constitutional scholar says there is too much in this thread to comment on other than to say that the decision in Roe v. Wade does more to advance the freedom interests concerning privacy than any other decision in the last 100 years.

    Also, the role of the judiciary is fundamentally directed at preventing the two other branches of government from violating the “highest” law of the land. To say that judges are above reproach is a misconstruction of the system from its idealistic foundation and to its practical operation.

    As for marriage, this operates on the really, really, old principle of Comity that we now refer to as full faith and credit or conflicts of law (see Article IV (no seriously, there is an Article IV) of the Constitution). The universal recognition of the laws of other states, and deference to enforce the same prevent us from being 50 sovereign nations as opposed to being 50 sovereign states. The Defense of Marriage Act changed this dynamic in the 1990’s such that it created a caveat via legislation to this rule on policy grounds, which, oddly, is built into the long history of conflicts of law rules at common law…

    The point of the Third Branch is to operate as a balancing check on the power and operation of the other two branches. That said, the check on the judiciary is the necessarily political implications of their rulings, and the fact that the President is the only one with the power to enforce those decisions. Think Alabama desegregation and Brown v. Board of Education.

    We can argue it 100 different ways, but advocating for the end of the judiciary would return this country to a time before the revolution, and into a system very similar to what we fought for independence against. Its worked for over 200 years. Times change. If you read the Federalist, you will see that the original document was drafted to incorporate the concept of societal change in order to protect the liberty interest of the individual. This works in the social contract setting because there are checks and balances.

    Sorry, that was supposed to be short…

  • NanJWalker

    After reading this post again (today, 7/1/11), I think you would be one to appreciate this song that our daughter Brittany Jean has written. You can see her perform it on YouTube at:
    And… Happy 4th of July!
    ~Nancy Walker