The Constitution requires interpretation

A few days ago, on the site, a conversation that we were having about Christine O’Donnell was hijacked by some folks who wanted to discuss the Constitution. I’m probably going to oversimplify this, but, according to my recollection (I’ll be damned if I go back and read through the whole thread again), there were essentially two camps. One group was of the opinion that the Constitution did not require any interpretation whatsoever. According to the individuals putting this idea forward, who would probably identify themselves as Libertarians and Tea Partiers, the Constitution holds the answers to every issue facing our country. And, not only that, but it’s completely black and white, leaving no room at all for confusion. Here, summing up that side of the argument, is a quote from a reader calling himself Brackinald Achery:

(T)he Constitution is a legal document, written in English. Legal phrases that were more in common use in the late 1700’s than they are now can be looked up in Blackstone or other contemporary sources to find their exact meaning. It’s up for interpretation like a speed limit is up for interpretation.

Others, as you might imagine, were of a different opinion. These folks, who I happen to count myself among, argued that, given the way the world has changed since the founding of our nation, it’s ridiculous to suggest that the words of the founders, in and of themselves, without the benefit of modern interpretation, could definitively answer the questions that presently face us; like gay marriage, the definition of torture, and the right for individuals to manufacture and own their own nuclear weapons. (If I read his last comment in the previous thread correctly, Mr. Achery believes that the Constitution gives each of us the right to own our own suitcase nukes.)

The arguments on both sides were fascinating, and I’d encourage you to go back and read through the thread if you get a chance. I think, to a great degree, it’s kind of a microcosm of what we’re seeing play out across the country, with the Tea Party movement. We’ve got these people among us who 1) don’t respect the authority of experts, and 2) refuse to accept that they live in a complicated world. These people truly believe, like toddlers believe in Santa Claus, that all the answers are right there, in the Constitution. Leaving aside for a moment the fact that most of these folks have never read the document, I think it’s incredibly naive for any adult to look at our current situation, where so-called strict constructionists like Supreme Court Justice Antonin Scalia argue that the Constitution does not, in fact, bar sexual discrimination, and say that there isn’t room for interpretation. As someone who doesn’t want to see segregated lunch counters in this country again, I can only hope that a majority of people feel as I do.

Anyway, the reason I bring all this up is because I just happened across an article in the Economist on this very issue. Here’s a clip:

…The Declaration of Independence and the constitution have been venerated for two centuries. But thanks to the tea-party movement they are enjoying a dramatic revival. The day after this September’s constitution-day anniversary, people all over the country congregated to read every word together aloud, a “profoundly moving exercise that will take less than one hour”, according to the gatherings’ organisers. At almost any tea-party meeting you can expect to see some patriot brandishing a copy of the hallowed texts and calling, with trembling voice, for a prodigal America to redeem itself by returning to its “founding principles”. The Washington Post reports that Colonial Williamsburg has been crowded with tea-partiers, asking the actors who play George Washington and his fellow founders for advice on how to cast off a tyrannical government.

Conservative think-tanks have the same dream of return to a prelapsarian innocence. The Heritage Foundation is running a “first principles” project “to save America by reclaiming its truths and its promises and conserving its liberating principles for ourselves and our posterity”. A Heritage book and video (“We Still Hold These Truths”) promotes the old verities as a panacea for present ills. America, such conservatives say, took a wrong turn when Woodrow Wilson and Theodore Roosevelt fell under the spell of progressive ideas and expanded the scope of government beyond both the founders’ imaginings and the competence of any state. Under the cover of war and recession (never let a crisis go to waste, said Barack Obama’s chief of staff, Rahm Emanuel), Franklin Roosevelt, Lyndon Johnson and now Mr Obama continued the bad work. Thus has mankind’s greatest experiment in self-government been crushed by a monstrous Leviathan.

Accept for argument’s sake that those who argue this way have identified the right problem. The constitution, on its own, does not provide the solution. Indeed, there is something infantile in the belief of the constitution-worshippers that the complex political arguments of today can be settled by simple fidelity to a document written in the 18th century. Michael Klarman of the Harvard Law School has a label for this urge to seek revealed truth in the sacred texts. He calls it “constitutional idolatry”.

The constitution is a thing of wonder, all the more miraculous for having been written when the rest of the world’s peoples were still under the boot of kings and emperors (with the magnificent exception of Britain’s constitutional monarchy, of course). But many of the tea-partiers have invented a strangely ahistorical version of it. For example, they say that the framers’ aim was to check the central government and protect the rights of the states. In fact the constitution of 1787 set out to do the opposite: to bolster the centre and weaken the power the states had briefly enjoyed under the new republic’s Articles of Confederation of 1777.

When history is turned into scripture and men into deities, truth is the victim. The framers were giants, visionaries and polymaths. But they were also aristocrats, creatures of their time fearful of what they considered the excessive democracy taking hold in the states in the 1780s. They did not believe that poor men, or any women, let alone slaves, should have the vote. Many of their decisions, such as giving every state two senators regardless of population, were the product not of Olympian sagacity but of grubby power-struggles and compromises—exactly the sort of backroom dealmaking, in fact, in which today’s Congress excels and which is now so much out of favour with the tea-partiers…

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  1. Brackinald Achery
    Posted September 26, 2010 at 9:31 pm | Permalink

    You read my comment incorrectly. Firstly, the Constitution does not give anybody rights. It gives the Federal Government certain enumerated powers, among which is not “regulating what weaponry people can own.” In fact, private citizens at the time of its adoption did own military ordnance such as cannons. The Constitution does, however provide for its own amendment — so when nukes were invented, they could have added “regulating weapons of mass destruction” as another power of the federal government as an amendment. Furthermore, the Constitution as originally written does not deny the States the authority to regulate what kind of weapons people can own, so they could have outlawed any weapons they wanted. 14th amendment screwed that up, however.

    So yeah, you have misrepresented what I said completely.

  2. Brackinald Achery
    Posted September 26, 2010 at 9:47 pm | Permalink

    I also never said or implied that the Constitution has all the answers to life’s problems. The framers did not want the Federal government to solve all of life’s problems. They wanted Congress to be able to solve 18 enumerated problems, and to have the States and the people solve the rest of them.

    If you can argue against anything I actually said, rather than your own made-up strawman versions of what I said — none of which I actually said — then have at it.

    If all you can do is immediately resort to logical fallacies to make my point seem absurd by lying about what I said, your case is obviously very weak. Do you have any facts? Do you even believe in facts?

  3. Brackinald Achery
    Posted September 26, 2010 at 9:57 pm | Permalink

    Here’s why you can’t accept facts.


  4. Scrap the old rag
    Posted September 27, 2010 at 12:38 am | Permalink

    “The Washington Post reports that Colonial Williamsburg has been crowded with tea-partiers, asking the actors who play George Washington and his fellow founders for advice on how to cast off a tyrannical government.”

    But how could that be? That old shitpot James Madison himself is here with us on
    Right, professor?

  5. Oliva
    Posted September 27, 2010 at 8:15 am | Permalink

    Thanks for this Economist passage. So sensible! I really appreciate the magazine choosing to hyphenate and lowercase tea-partiers–sweet subtle power of punctuation . . .

  6. Edward
    Posted September 27, 2010 at 9:27 am | Permalink

    Brack, I know that your comments are thoughtful, and that you put work into them, and I don’t mean this as a slam, but I sometimes have trouble following them. With regard to suitcase nukes, I believe you’re saying that the constitution as it was written did not regulate what kinds of weapons that people can own, but that our elected officials could have added a clause regulating weapons of mass destruction, if they’d wanted to. And it would then follow, that, as the constitution hasn’t been amended to accomplish that, we the people do indeed have the right to own nuclear weapons, at least in your opinion. So, you’re telling Mark that he misrepresented what you said, when he said that you felt that, according to the constitution, we could own nukes, but isn’t that exactly what you’re saying? What am I missing here?

  7. Posted September 27, 2010 at 11:30 am | Permalink


    The Constitution does not give each of us the right to own suitcase nukes. As BA pointed out in the very first comment on this thread, it does not give anybody rights; no government can.

    The Constitution does prohibit Congress from restricting weapons ownership (arms), but makes no such prohibition with regard to states.

  8. Kim
    Posted September 27, 2010 at 12:14 pm | Permalink

    Doesn’t the constitution give us the right to bear arms?

  9. Peter Larson
    Posted September 27, 2010 at 12:24 pm | Permalink

    But 40 states have Constitutional rights to bear arms using text that’s similar to the US Constitution. Thus, I think that arms would refer to any kind of nuke, as well, being that nukes are arms. So we have the right, according to the States, to own whatever we like and bear them in any fashion we like.

    Unless the text merely prevents the States from making laws against the ownership of arms, then would it defer to the counties, cities and townships to outlaw the ownership of nuclear weapons?

    It’s seems, then, there would be some great “nuclear friendly zones”, kind of like prostitution in Nevada.

  10. lorie thom
    Posted September 27, 2010 at 4:06 pm | Permalink

    and we have the supreme court to do exactly what?

  11. Phelps
    Posted September 27, 2010 at 4:11 pm | Permalink

    So there is no right to bear arms in the constitution? What’s the second amendment, then?

    “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

    You people are retarded.

  12. EOS
    Posted September 27, 2010 at 4:36 pm | Permalink

    The Supreme Court’s function is to evaluate new laws to determine if they are constitutional, that is, if there are delegated powers to the legislative or executive branches that support the basis of the law. If the powers are not enumerated at the Federal level, the Supreme Court should rule them unconstitutional.

    It is also the court of last resort and can overrule any judgment of a lower court.

  13. EOS
    Posted September 27, 2010 at 4:40 pm | Permalink

    I agree with cmadler and BA. The government cannot give rights to anyone. Rights are inherent and governments exist to protect those rights. If a government could grant rights then they would also have the ability to take away those rights.

  14. Dirtgrain
    Posted September 27, 2010 at 5:06 pm | Permalink

    Rights are what we collectively decide they are. I don’t see any way around that. How do free-market capitalist, Libertarian, Randian Tea Partiers view rights?

  15. Peter Larson
    Posted September 27, 2010 at 6:10 pm | Permalink

    Natural rights come from God, who had an awful track record of respecting religious freedom, freedom of speech and thought, and freedom to assemble.

  16. Mike Shecket
    Posted September 27, 2010 at 7:18 pm | Permalink

    One – I think there’s a problem with magical thinking on the political left sometimes, too. I know I’m exaggerating, but just as there’s people who say “we just have to do what the Founding Fathers said to do and everything will be OK” or “we just have to keep cutting taxes and everything will be OK”, there are others who will go with “we just need to get rid of the rich people” or “we just need to give everyone the right to have a job”. I distrust anyone who thinks there are easy answers. I appreciate people who have conviction, but only if it comes with really grappling with tough issues and acknowledging that reasonable people can disagree.

    Two – I see Constitution worship as an echo of the strain of fundamentalist Christianity that might be called Bible worship. It doesn’t matter how grotesque an idea is or how much you have to ignore observable reality to hold that idea as true: if it’s in the Bible, that’s it. They can’t really be said to be worshippers of a deity so much as worshippers of a book. Thus follows the worship of a few pieces of parchment.

    Three – It’s irritating–and ironic–that while all these Constitution-thumpers accuse the president of ignoring the document, he’s probably the most scrupulously constitutional president we’ve had since Hoover, to the detriment of his popularity with his base and his ability to effect the policies he would ideally want if he had a Karl Rove. It’s not his job to write legislation. It’s not his job to be popular or do things to try to get reelected. It’s job his job to bend the opposition to his will. Everybody seems to either want a Big Daddy president–a liberal W–or they imagine that he is one and are terrified.

  17. Brackinald Achery
    Posted September 29, 2010 at 5:42 pm | Permalink

    That last paragraph is a good one! Among other things, somebody remind me when Congress declared war on Pakistan. The Commander in Chief of the armed forces seems to think they did at some point.

  18. Mike Shecket
    Posted September 29, 2010 at 11:49 pm | Permalink

    Well, Pakistan is right where principle runs up against intractable facts. There are people there who we want to kill, but the government nominally in charge of the area where they’re located has nukes. We declare war on them, formally, and (I’m just guessing how it would wargame out) they go into a proxy war with India, millions of people die, fundamentalists take charge of Pak’s nukes, etc. etc. If we don’t say that we’re going to kill those people and actually don’t kill them, then, it is argued, they’ll kill a bunch of us. Or, in the alternative, we just really want to kill those guys, and we don’t get to.

    It might have been prudent as a matter of policy and more constitutionally correct to say, after Tora Bora, “we didn’t get the guys we were trying to get and they escaped to a country that we can’t attack, so we lost.” But that would have been politically unthinkable, and obviously it was the last thing the last administration wanted to do. I think for the current administration, it’s a tough issue, almost into “the Constitution is not a suicide pact”-type territory.

  19. Oliva
    Posted October 14, 2010 at 9:05 pm | Permalink

    There’s a very beefy new coauthored book out called Madison and Jefferson–fine Christmas gift? Looks (and sounds) very good. I heard an interview on KERA’s THINK radio show with the authors, who describe the two Virginia elites (Palin would roll her eyes? ), Madison’s fear of travel, both men’s shared plan for recolonization of slaves to Africa but Madison’s more elevated thinking on racial matters. I didn’t realize Madison was only 5’4″. And so much more. Can’t wait to read it (850 pp., yikes). The interview was quite interesting:, for anyone who relishes a scholarly minded take on the Founders. (Mark H., you might have already read the big fat book? I’d be curious to hear your thoughts about it.)

  20. Oliva
    Posted October 15, 2010 at 9:54 am | Permalink

    I should have mentioned, given the subject of this post, that the authors begin the interview saying how ludicrous it is for people to assert that it is possible to go by the Constitution framers’ “original intent” given the vastly different culture and society then, so it’s a heartening interview from the start. Hearing smart, interesting people is heartening indeed.

  21. kjc
    Posted October 15, 2010 at 10:25 am | Permalink

    Thanks for the link Oliva.

  22. Mark H
    Posted October 15, 2010 at 8:07 pm | Permalink

    Olivia, the book you mention on “Madison and Jefferson” sounds quite good idea, but alas, I’ve not read it, or even seen it yet. A dual biography of these two men sounds like a very appealing way of approaching the era. Thanks for the tip on the book! The link isn’t working for me right now, but i think it will later….

    And your point about the absurdity of speaking of some unitary, original intent of the “Founders” or “framers” is absolutely correct. The founders didn’t agree with each other, and at times as the framers wrote the constitution, they deliberately sought ambiguity. And they were human, so they changed their minds: So, if say you’re talking about Madison’s intent, do you mean his intent before he was for a Bill of Rights, or when he was writing the Bill of Rights, or when he was arguing strenously against the very idea of a federal bill of rights? Never mind the arguments that framers had with each other.

    I wonder if James Madison has an opinion about this book?

  23. James Madison
    Posted October 15, 2010 at 8:10 pm | Permalink

    I’d like to read this new book “MADISON AND JEFFERSON” but unfortunately Satan does not allow us many books here, and besides, most of them just burn up, adding heat to this already hot environment of Hell.

  24. James Madison
    Posted October 15, 2010 at 8:11 pm | Permalink

    Clearly, this new book has its title right, listing the more influential of these two men first.

  25. Oliva
    Posted October 15, 2010 at 9:18 pm | Permalink

    You’re welcome, kjc. Mark, I hope the link works for you later. If not, I can hunt down a different way to it. I think in that Christmas list Peter presented, I’d like to add five weeks (oh gosh, getting greedy) in a temperate spot with time for big scrumptious books and other of life’s best offerings–and a surprisingly bright election recently behind us. (There was an encouraging note about polls not tracking cell phone users [still], which I hope is correct.)

    P.S. James M.–these authors really seem to dig you (judging from the interview–I have yet to read the 850 pp.). We all have our quirks and deficits, but you seem like someone with a fine mind and openness to changing it when prompted to by life and new ideas. Am I right?

  26. James Madison
    Posted October 17, 2010 at 7:02 pm | Permalink

    Yes, indeed, Oliva, I do like people who have “fine minds” and are willing to learn and change when confronted by life and new circumstances. I wish I’d been more like that while living — if as president, I’d been more flexible maybe we could have avoided that needless War of 1812 (which some called “Mr. Madison’s war”). Despite not being as open minded while president as i now think I should have, I also think that earlier in my career I was indeed the most flexible, and adaptive of statesmen. Compromise is often necessary, and i am endlessly proud of the compromises I helped forge that made the constitution possible. I was dead set against any Bill of Rights, and then I wrote The Bill of Rights, to win support for the new U.S. Constitution; only later did I come to embrace the Bill of Rights as probably the most enduring part of the constitution. OF course, by then I was dead and it was the early 20th century, but I was still paying attention and learning.

    Thanks so much, Oliva, again, for your comments. I do hope to get hold of this new book on me and ol’ Thomas. (In death, Thom is a bitter, foregetful man – like a demented but hateful person. Sad to say, in death he lost curiousity and drive as soon as he realized he was cast into the pits of hell for owning slaves. )

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