Constitutional Myth #1: The Right Is 'Originalist,' Everyone Else Is 'Idiotic'

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Justice Scalia and certain other conservatives deny that America's Founding Fathers left any room for interpretation in the Constitution

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Politifact Georgia reports that pizza magnate Herman Cain told the audience at an Atlanta rally to read the Constitution, explaining that "for the benefit for those that are not going to read it because they don't want us to go by the Constitution, there's a little section in there that talks about life, liberty, and the pursuit of happiness ... When you get to the part about life, liberty, and the pursuit of happiness, don't stop right there, keep reading. 'Cause that's when it says that when any form of government becomes destructive of those ideals, it is the right of the people to alter or abolish it. We've got some altering and some abolishing to do."

This quote neatly illustrates two pathologies of 21st-century "constitutionalism."

First, many of these patriots love the Constitution too much to actually read it (in case you were wondering, the language Cain is quoting is from the Declaration of Independence, not the Constitution). Second, they love the Constitution so much they want to "alter or abolish" it to make sure it matches the myth in their heads. Those myths are a problem. They get in the way of honest debate. Last week I proposed a parlor game in which we look at some of the more corrosive myths circulating about the Constitution, and I offered by own list. Readers have responded with some suggestions of their own, and I will answer some of their nominations as the summer wears on. For now, though, I want to start working my way through my own list of the Top 10 Myths about the Constitution. I look forward to thoughtful responses, as the game begins.

Myth #1: The Right Believes in a "Written Constitution," Everyone Else Believes in a "Living Constitution"

In a 2006 speech in Puerto Rico, Justice Antonin Scalia explained why conservatives are the only ones who actually believe in the Constitution. Progressives, he said, believe in "the argument of flexibility," which "goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break. But you would have to be an idiot to believe that. The Constitution is not a living organism, it is a legal document. It says something, and doesn't say other things."

Is health insurance "commerce ... among the several states"? The Framers wouldn't have said "yes" or "no." They would have said, "What is health insurance?"

A year later, George W. Bush told the Federalist Society, "Advocates of a more active role for judges sometimes talk of a 'living constitution.' In practice, a living Constitution means whatever these activists want it to mean." 

The idea of a "living constitution" is useful because it lets right-wingers like Scalia pose as principled advocates and ridicule anyone who disagrees with his narrow ideas as an idiot. But if one side of a debate gets to define what the other side supposedly believes, it's no big trick to win the argument.

The argument is a classic bait-and-switch. It begins with the claim that the Constitution has a definite, fixed meaning. We must apply that meaning and only that meaning, or we are "changing" the Constitution. But then it turns out that the words themselves aren't clear. Then we learn that their meaning isn't what's written in the Constitution's text; it is actually somewhere else. The words on the page have to be interpreted, and they are to be interpreted in a secret way that conservatives "know" because they have looked it up in the Big History Book. If we do not accept their claims about what the words "really" mean, we are "changing" what is written on the page, trying to "amend" it on the sly.

(In fact, to hardcore conservative "originalists," not even amendments can change the "original meaning" of the Constitution. Not long ago, I published an essay in which I said that the Constitution "has become more democratic and egalitarian" since 1787. An indignant reader wrote and said that the democratic changes I was writing about had occurred "without amendment" and were thus illegitimate. I replied that the changes I was writing about were in the Thirteenth, Fourteenth, Fifteenth, Seventeenth, Nineteenth, Twenty-Third, and Twenty-Fourth Amendments, which had expanded individual rights, augmented the power of Congress to protect those rights while cutting back on state authority to limit them, made the Senate a popularly elected body, and expanded the right to vote to cover racial minorities, women, young people, and those who cannot pay a state "poll tax."

My correspondent indignantly replied that these amendments hadn't really changed anything. The Constitution was the same as when it was written in the 18th century. Except, he then explained, the Framers hadn't known what they really meant when they wrote it. "Our founders were right smack in the middle of the transition from mercantilism to capitalism. They still did not fully grasp that constraints on trade fail." If they were alive today, they would agree with him that the Affordable Care Act--and indeed, all federal economic regulation passed since the New Deal--was unconstitutional.)

I would call this approach to constitutional interpretation "dead constitutionalism"--meaning that the meaning of a constitutional phrase can be ascertained by means of a séance in which we ask the dead what they really think. Justice Scalia himself is a proud practitioner of this dark art. It's on display in his concurrence in the 2009 case of Citizens United v. Federal Elections Commission, which held that the First Amendment bars any restrictions on independent campaign expenditures by profit-making corporations. Justice John Paul Stevens, in his dissent, had questioned the majority's radical ruling on "originalist" grounds.  Private corporations were relatively new at the time of the framing of the First Amendment, Stevens noted, and many of the Framers were profoundly suspicious of the corporate form. Can we say that they "intended" Chevron to be able to flood the political process with electioneering messages?

Scalia brushed this aside in the same huffy tones my correspondent used to dismiss seven constitutional amendments. The Framers opposed corporations because they were associated with monopoly, Scalia explained. "Modern corporations do not have such privileges, and would probably have been favored by most of our enterprising Founders--excluding, perhaps, Thomas Jefferson and others favoring perpetuation of an agrarian society."

Trust me, the "original meaning" is what I say the Founders would say if they were alive today. I know what that is because I just spoke with them. Anyone who disagrees with the voices I hear is an idiot. Real Americans have to do what the voices tell me they should do.

The "living Constitution" label is about as useful as a Tannu Tuva stamp. All conscientious judges, of whatever philosophy, are trying to apply the words of the Constitution. But almost no serious constitutional question involves precise, unambiguous words. The Constitution says that the president has to be 35 years old, for example; no one I am aware of has ever challenged that rule  by arguing that since 50 is the new 30, the president should now have to be at least 55.  

Instead, genuine constitutional cases center around general terms used in the document. Take one that has been prominent lately--"natural-born citizen."  The Constitution doesn't define the term. So in April 2008, the Senate passed a resolution stating that John McCain, born in the Panama Canal Zone, was a "natural-born citizen" and thus eligible to be president. Remember that in 1787, there were no U.S. military personnel serving abroad; indeed, many of the Framers assumed there never would be a standing army, and that a self-governing republic would eschew foreign conquest and occupation. (No U.S. troops went on occupation duty until the Mexican War.) The evidence that they "intended" the "natural-born citizen" clause to apply to children of troops stationed abroad is nonexistent.

One of the measure's sponsors was Sen. Tom Coburn (R-OK), one of the Senate's loudest "originalists." Was Coburn being a hypocritical "living constitutionalist" then? Certainly not. He was being a good constitutionalist--not an "originalist," not a "living constitutionalist"--applying an unclear term to a new and perhaps unforeseen circumstance. 

Americans of all stripes do exactly this every day with terms like "due process" or "commerce ... among the several states." Like "natural-born citizen," those terms were ambiguous when written, and they are ambiguous today. The job of constitutional interpretation is to apply them to the changing facts of American government and society. Is health insurance "commerce ... among the several states"? The Framers wouldn't have said "yes" or "no"; they would have said, "What is health insurance?"

If you think that answer means that "commerce" today doesn't extend to health insurance, you aren't supporting a "living Constitution"--you are describing a dead society, whose fundamental law cannot be applied to the facts of our national life.  

When they are in favor of warrantless wiretaps or "enemy-combatant" detentions, many conservatives like to explain that the Constitution is not a suicide pact. Maybe not. But it's not a killing jar either, designed to freeze society in an eighteenth-century mold. It is a set of general rules which we, the living, must apply, in a fully textual sense, to unforeseen specific cases.

I will cheerfully admit that conscientious conservative judges and scholars may differ with me on the specific application of a given provision. My hat's off to them, The Constitution was written to give us something to argue about, and most of these important issues are also hard ones.

But in reaching their conclusions, conservatives rely on the same tools progressives do--text, structure, history, political philosophy, interpretive theory, and practicality.  When Justice Scalia--or anyone else in this context--describes those whose differ with him as idiots, he is not just being rude and vulgar, he is being dishonest.



Garrett Epps's Full Constitutional Myth Series:

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Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore and lives in Washington, D.C. His new book is American Epic: Reading the U.S. Constitution.

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