For conservatives and religious zealots in particular, the Constitution is almost a religious document: an unquestionable source of wisdom, guidance, and justice. For them, belief in perfection becomes absolute reverence. Ask them to justify their belief, and you will be attacked immediately for being unpatriotic, for daring to question the wisdom of the Founding Fathers, who—more than 200 years ago—were all wise and all-knowing, almost god-like, when they gathered to set the rules of the game for American democracy. Dare to ask them if they know any other nation’s Constitution, and how it stacks up to that of the United States, and you will be looked at with a tinge of xenophobia. The Constitution’s perfection is not up for discussion. Period.
The only amendments that these conservative Constitutional zealots would consider are of a restrictive nature: a marriage amendment to define that marriage is the union of a man and a woman (no equality for homosexuals); an amendment declaring America a Christian nation (essentially relegating atheists and followers of other faiths to second-class citizen status). In so doing, they ignore the historical fact that most Amendments to the Constitution have led to the expansion of people's rights, rather than to their limitation (the notable exception being the 18th Amendment, which briefly instituted prohibition). They maintain that, in deference to the infinite wisdom of the Framers, we should use no less than the strictest interpretation of the Constitution, and that presidents should appoint only constructionist judges to guard against liberals, who have no respect for authorial intent.
How could anyone, I wonder, have such faith in the absolute perfection of a document authored by human beings at the end of the 18th century? Not that the Founding Fathers were not an enlightened bunch in their day, but perfect? Didn’t they write Article I, Section 9 of the Constitution, which explicitly states that no attempt to prohibit the importation of men (slavery) should be made at least through the year 1808? So I started doing some research.
Did The Founding Fathers Have Delusions Of Perfection?
My first objection to such fanaticism for the Constitution and, with it, the myth of infallibility of the Framers, stems from logic: If the Founding Fathers were as wise as Americans think they were, would they have assumed perfection for themselves? I hardly doubt it. Wisdom has a way of showing up hand in hand with humility. Arrogant people are seldom wise (we have some shining example of this fact in the present day White House), so it seems to me that a necessary requirement for superior wisdom is a superior sense of one’s limits. I highly doubt that the Founding Fathers would have such an elevated opinion of themselves to admit no possibility of improvement to the nation’s founding papers. And in fact, I found a quote to support my hunch:
No society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation… Every constitution, then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force and not of right.
An opinion so distant from the infinite wisdom of the Founding Fathers could only have been written by a flaming liberal: probably a Kennedy under the influence, right? Look the quote up: Thomas Jefferson wrote it in a letter to James Madison. Incidentally, Madison replied:
It would give me singular pleasure to see [this principle] first announced in the proceedings of the U. States, and always kept in their view, as a salutary curb on the living generation from imposing unjust or unnecessary burdens on their successors.
Contrary to what conservatives would have you believe, Jefferson was not alone in his interpretation that the Constitution should be regarded, and was intended by the Framers, as a living document:
The warmest friends and best supporters that the Constitution has, do not contend that it is free from imperfections; but they found them unavoidable and are sensible, if evil is likely to arise here from, that remedy must come hereafter; for in the present moment, it is not to be obtained; and there is a Constitutional door open for it, I think the People (for it is with them to Judge) can as they will have the advantage of experience on their Side, decide with as much propriety on the alterations and amendments which are necessary [as] ourselves. I do not think we are more inspired, have more wisdom, or possess more virtue than those who will come after us. (Emphasis added).
That quote is from another champion of un-American sentiment: your first President, George Washington.
In their truly great wisdom, the Founding Fathers knew that the Constitution would be imperfect. For example, they could not have known that the day would come in the history of the nation when 17% of the population would elect a majority of senators. That day has arrived. They could not agree on the prohibition to own slaves, so they left the prohibition in place at least through the year “one thousand eight hundred and eight”, but they could anticipate that future generations would amend this horrible wrong. They might not have been able to name the day when women would be allowed to vote, but they deferred to the wisdom of generations to come and bequeathed to them a system of clear instructions for amending the Constitution. They could not have known that the day would come when a president would interpret the constitution in such a way that would grant him the power to wage perpetual war under a single resolution of Congress, or that he would use the Constitutional prerogative of signing statements to challenge more laws than all other presidents combined, a practice so extensive that it earned the censure of the American Bar Association. That is precisely why they provided the power for future generations to improve the Constitution, so it could address unanticipated issues.
What The Preamble Tells Us
As you might know, there is a sizable number of conservatives (and libertarians) who believe that the role of the government, as defined in the Constitution, is to administer justice and secure the nation, and that everything else should be left to the free market. Does the Constitution corroborate this interpretation? We can start right from the Preamble, which says:
We the People of The United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Sure enough, establishing justice, insuring domestic tranquility and providing for common defense are stated goals in the Preamble. There is no mention, however, of the role of free market in a democracy. So where do conservatives get the idea that the government should not play a role in the social development of the nation? Or that the government should not play a role in regulating free enterprise? In fact the Preamble clearly states that one of the goals of the Constitution is to “promote the general Welfare”. It seems to me that programs like Social Security, Medicare, Medicaid, HUD, a national transportation system, a publicly-funded healthcare system, laws that regulate our interaction with the environment, workers rights laws, and so on, might very well fall under the umbrella of promoting the general welfare, don’t you think? When considering that the Preamble was written by 18th century men, it seems the Founding Fathers had a fairly progressive view of the role of government in society. Progressive enough to make promoting general welfare a part of the Constitution, without any mention of a preferred economic theory by which such welfare could be achieved.
I am starting to think that perhaps the ability of some conservatives to claim that they know the authorial intent of the Founding Fathers is inversely proportional to their actual knowledge of it.
The Genius Of The Constitution, in Jeopardy?
Perhaps the greatest accomplishment of the Founding Fathers was the separation of powers achieved by establishing three branches of government. While the case has been made that nowhere in the Constitution the explicit phrase “separation of powers” can be found, authorial intent can be assumed based on extant writings by the Founding Fathers. For example, it was Jefferson who said in 1784:
All the powers of government, legislative, executive, and judiciary, result to the legislative body [in the Virginia Constitution of 1776]. The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. 173 despots would surely be as oppressive as one. [Emphasis added]
Madison reaffirmed these concepts in Federalist Paper #47, when he said “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” A further explanation of the concept of the separation of powers (which according to some did not go far enough) is clearly and extensively enunciated in Papers 47-51.
In light of such positions, one naturally wonders if the Framers’ would not have questioned the wisdom of granting presidents the power to appoint justices for life, which they did, when President Bush was able to successfully appoint Justice Alito and Chief Justice Roberts to the Supreme Court, with the help of a Republican Congress that made it possible to rubberstamp even the president's most ideologically charged decisions, such as those two appointments were.
The role of Judiciary as a safeguard against abuses of power by the Executive or the Legislative branch relies on the political independence of the appointees. But for a year, until voters decided to reverse the Conservatives' monopoly on the three branches of government that the appointments of Justices Alito and Roberts had brought into effect, checks and balances were for all effects and purposes voided, a temporary but rather undesirable situation nonetheless, one that could have lasted longer, with dramatic and long lasting consequences.
Ignorance Is Not Bliss
A Constitution so rightly revered deserves to be actively known, not just arbitrarily interpreted by those who stand to gain the most from a fixed interpretation of it that does not leave room for the scientific and social progress that the Founding Fathers would have been proud to be a part of. The unholy alliance of social conservatives and moral conservatives goes against the spirit of freedom, justice, and enlightenment that the Framers had written into the constitution. Their message is not so much “Revere the Framers". It is “Do not question authority”, “Do not question the textual interpretation of the Constitution, just as you would not question the word of God”. That seems precisely the opposite of what the Framers’ had in mind.
Alexis de Tocqueville prophesized that “…the concentration of power and the subjection of individuals will increase amongst democratic nations ... in the same proportion as their ignorance.” Unfortunately, most Americans know little or nothing about the Constitution nor about the men that bestowed it on the nation. Thus, they are susceptible to the claims of those who claim to have an intimate knowledge of the Framers’ authorial intent, but are quick to neglect when it does not suit their ends.
There is ample evidence that the authorial intent of the Founding Fathers was exactly the opposite of what strict constructionists say it is: The Constitution is not, and was never meant to be, a perfect, immutable, petrified tablet, containing a truth revealed to America by a higher authority. That honor is reserved for figures much less enlightened and complex, like Moses. The Founding Fathers indicated on several occasions their opinion that they did not assume that the Constitution should never be changed. They left open the possibility that it would be changed, and were certain that it would indeed need to be changed. They were wise enough to understand that they could not anticipate future developments or improvements in the state of knowledge, and they would not have wanted to hold future generations hostage to their ignorance of what they could not anticipate. They were, in fact, much wiser than strict constructionists like Justices Scalia or Rehnquist give them credit for. That is what you need to keep in mind when ultraconservatives, neocons, and religious zealots confront you with the idea of authorial intent and textualism.
So let me remind you of a quote that Thomas Jefferson delivered, which underscores the importance of standing up to false prophets and of not voluntarily surrendering authority to those who claim it solely based on their presumption of knowledge or powers they don’t have: “I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms are in the physical.” Had he said that today, President Bush would likely have declared him an enemy combatant. And what’s worse, our ignorance would make it possible.