In honor of Constitution Day, I thought I would take this opportunity to reflect on the sacrosanct document of great myth and folklore that defines our ideals as citizens of a great nation. As a first year law student, I have recently had my mind blown about the contents of this document and the implications thereof. Not being one to keep things to myself, I thought I would take the time to share them with you now.
A most fascinating common misnomer about the US Constitution is the idea that it serves as a mechanism for preserving "freedom and democracy" in our great nation. This is absolutely incorrect, and I will tell you why.
First, if the Constitution is supposed to preserve our freedom then one might consider it to be the most failed experiment in world history. Consider this: the U.S. has the largest incarcerated population of any country on Earth. According to the DOJ, 7.1 million people or 1 out of every 33 American adults are under the supervision of correctional authorities. 1.6 million of those people are living in prison. Is that because our society is increasingly criminal? Or is it because our system is increasingly overreaching? Maybe it's a sign that our police are really good at catching bad guys and we just so happen to have an unusual amount of bad guys here. Or rather that criminal defense lawyers are lazy and incompetent.
Who knows, but either way, if the Constitution was supposed to protect our society's freedom, how well is it serving that purpose with so many people sitting in jail and Congress continuing to stretch its power by passing laws such as the Patriot Act, the National Defense Authorization Act, and the Foreign Intelligence Surveillance Act?
Granted, these laws are new enough that they haven't made their way through the courts to be struck down on counts of contradicting the constitution. The point remains, while we enjoy many freedoms in this country, they aren't necessarily sanctioned by the constitution. They are sanctioned by the people, and our perceptions of what is ethically, economically and legally right. Ultimately, we decide what freedoms we deserve to keep.
Second, the Constitution makes no guarantee of democracy. In fact, it guarantees otherwise by instituting the Electoral College for Presidential elections, and in what is commonly referred to as the "guarantee clause," Article IV, § 4 states, "The United States shall guarantee to every State in this Union a Republican form of Government." This is designed to ensure a republican form of government, not a democracy. The founders wanted it this way because they knew that pure democracy could lead to chaos. So instead, we have a representative form of democracy called a Republic. Here, the people elect others to do the work of legislating for them in hopes that these politicians will serve the interests of their constituents. This removes government action from the whims of an easily influenceable populace.
But who is to say what the founders meant by "Republican form of government" anyway? Maybe they were merely abolishing monarchies in the states? Or maybe they simply wanted to say that government should be a public matter, which leads me to the issue of interpretation.
The most common ways of interpreting the Constitution are: originalism, textualism, and organic. Originalism, sometimes referred to as formalism is most closely associated with conservatism. People in this camp approach every issue with the Founding Fathers in mind. They always ask the question, "What did the framers intend when they wrote this?" They believe that founding principles should dictate the course of action. So, they take what they believe those principles to have been and apply them to the issue at hand. This theory also contends that it is not the role of judges to make law, but only to uphold the law as it was intended to be upheld at the time it was written.
The theory runs into problems when those who decide the intentions of the founders don't live in the 18th Century. What did the founders think about regulating pornography on the internet, or violent video games? How often did James Madison ponder on the government's role in space travel or drone warfare? What did Thomas Jefferson think about cloning or stem cell research or euthanasia or abortion?
Furthermore, the theory boldly assumes that there was concurrence among the Founders; that they were all on the same page as to the purpose of enacting amendments; that the Constitutional convention was one big happy family where the parties agreed and shared values. But If you know anything about our history, you know that it was quite the contrary, and that our early political struggles were some of the most epically ruthless in our history. Shockingly enough, the founders were divided on many, if not most of the issues that they tackled.
Most closely associated with the originalists are textualists. These folks say, if it isn't written, it doesn't apply. They look at the words of the Constitution and apply what is deemed to be the most reasonable interpretation of the written language. It is not necessarily limited to the strict words themselves, since those words gain meaning through the context in which they are used. The result is that a textualist must apply whatever context that he or she deems most appropriate for the terminology used, and they most often reach back to the time that it was written for perspective. A textualist would say that since the words "right to privacy" do not exist in the Constitution, they are not rights that Americans inherently possess.
The problem with this theory is that it assumes objectivity in interpretation. It also runs into issues commonly referred to as the "scrivener's error". That is, when laws are interpreted literally, they sometimes have an absurd or disastrous consequence due to the incompetence or lack of foresight in the author.
Lastly, we have the organic method of interpretation. This is commonly referred to as the "living document" theory. The idea is that we look at the Constitution from our modern lens, and we apply our contemporary sensibilities in interpreting what it should mean and how it should most logically be applied to our modern lives. This approach leads to trouble through its blatant admission of bias and judicial whim. If the Constitution is subject to change with every new interpretation of it then what purpose does it serve in grounding our ideals as a nation? Why even have elected legislators to make laws when judges could freely interpret those laws subjectively with no foundation on lasting principle? It would also essentially remove the people from making the law by putting it into the hands of judges to interpret for whatever political purpose they see fit.
Of course, I have mostly pointed out only the criticisms in these interpretation methods without actually prescribing one as the proper and most accurate. That is because I don't feel that I am yet qualified to make such a proclamation since I am still very new to the study of law and politics. Suffice to say, one day I hope to develop my own theory of interpretation that abides most closely to my own personal worldview and principles, and trust me, when I figure that out, there will be another unreasonably long blog post. Until then, I think it is safest to be weary of each method, and to take a little from each to form a well-rounded opinion.
In ending this long-winded and somewhat irrelevant rant on the Constitution and its interpretive theory, I will conclude by saying that the founders were brilliant and prudent men with great vision and wisdom. They accomplished something amazing when they designed our system of government. But what they accomplished passed on great deal of responsibility to each and every one of us as citizens because the constitution is just a document. In actuality, it is just a fading piece of paper sitting in a glass box in Washington D.C. The task of preserving our rights lies with us because freedom is whatever we want it to be.
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