A Truly ‘Living’ Constitution

by Joseph W. Stuart

Years ago, when I was in law school, I had the chance to take a break from the study of contracts, conflicts, and corporations for a semester of the philosophy of law. The course was taught, not by a lawyer, but by an old, independent-minded philosopher, Paul Weiss, who died a few years ago at the age of 101. In those days, Professor Weiss was a mere 86 years old, wizened and shrunken in body, but resilient and resounding in mind. He would shuffle back and forth in the well of the auditorium, persistent in his questions and adamant in his answers, occasionally bringing his worn wooden cane hard upon the lectern for emphasis, then cracking a joke at his own expense — like a latter-day Socrates viaNew York’s Lower East Side.

The only text we had for the course was the U.S. Constitution. It served Professor Weiss well as a means to help us inquire into legal and political philosophy, into rights and powers and liberties, and their limitations. For the first class, he read from the top of the text: “We, the people of the United States of America, in order to form a more perfect union . . .” Then, leaning forward on his cane, he asked, “Who are ‘we’?” We — meaning the small “we” of a handful of students and our teacher — spent the entire first session on that question, and the next several classes on the Preamble alone. We had good reason to do so, because it told us much: that the drafters of the document intended that it be an agreement by and from and among the people, and that it united them with their descendants, securing the justice and liberty just won.

Today is Constitution Day, when we commemorate the formation and signing of the Constitution on September 17, 1787 — as good a time as any to consider what the Constitution is. In fact, it’s a better time than most, because we are a nation increasingly divided by pressing constitutional issues, especially of the powers and limits of the federal government. From the corporate bailouts of 2008 to the health-care legislation of this year, the question has become whether the Constitution still applies, as it is written, or whether it has been overtaken by events. We have heard federal representatives treat questions about the constitutionality of their actions as hopelessly naïve or irrelevant.

But what is the Constitution? Fundamentally, it is a contract among citizens — a concise, comprehensive, and continuing understanding about how our federal government will operate. It reflects the widespread agreement of the nation’s citizens in 1787, as changed from time to time, and each time changed, again, by widespread consent. All thirteen states adopted the original Constitution, and all 27 amendments since have won the support of at least two-thirds of the members of both houses of Congress — which would be a daunting feat in these partisan days — and the ratification of at least three-quarters of the states. In requiring unanimity at the outset and broad consensus along the way, the Framers wanted the people to be united in agreement.

Like any written contract, the Constitution speaks for itself — it says what it says. It is the best evidence of what we agreed to, when we agreed to it. People know — and, if they don’t know, lawyers will always tell them — to get it in writing. We spell out our agreements, because, over time, minds change, memories fade, and disputes arise about what the agreement was. When disputes do arise, courts around the nation apply two simple rules in interpreting the contract (or, for that matter, any written instrument) before them: First, read the agreement — if what’s written is clear enough, then it is what it is, and what is written governs, whether or not some believe now that the bargain has gone bad; second, if what’s written is not clear, then determine what the parties intended when they reached their agreement — not now, but then — and that intention, reflected in the words and circumstances of the agreement, governs.

The original parties to this contract may be long deceased, and we may picture them in powdered wigs, posing and pointing to an ancient parchment — yet we, their successors, live and must live with the bargain they made. As with any other written agreement, justice requires that we not favor presently disaffected parties over those who rightly insist that a deal is a deal, especially when the disaffected have the means to change it, if they have the will and the support of a large majority of their fellow citizens.

But, the temptation, in courts and in society, is to ignore what was and deal with what is. Times do change. A 30-year-old lease, created in the day when kilobytes were the highest measure of data, may appear out of date. The parties who inked the agreement years ago may be gone, and their successors — packing terabytes in their palms — are the ones who are presently complaining.

This temptation yields a view of the Constitution as both wonderfully marvelous and woefully antiquated — as a fascinating artifact, suitable for archivists and historians, but unsuitable for everyone else, like a horse and buggy trotting up the entrance ramp to the freeway. Thus, scholars describe the Constitution as “living” — which, in truth, means that it is dead in letter, though alive somehow in “spirit.” In this view, the Constitution is at once untouchable and highly pliable, sufficiently so to stuff it with all sorts of notions that would have knocked the wigs off the original parties.

The Constitution is living, but not in that sense:

It’s more like the house we all live in. Our ancestors framed the original manse just following colonial times, then soon built a large addition; their grandchildren completed a costly repair and renovation years later after part of the foundation collapsed; and later, their children and grandchildren added more extensions and outbuildings (one, thankfully, that they later torn down). Today, it reflects a variety of styles and influences, but it is still our home, however homely. Its structure, dimensions, and materials are sound and determinable, and here we all are under the same roof.

Every couple of years, we hire a few of our own to maintain the old place: our representatives, presidents, and their appointees. All of them, from the greatest to the least, take an oath, pledging that they will support it and keep it up. They do this for a simple reason: The Constitution does not belong to them. It belongs to us. As citizens, judges and politicians have their own small stake in the Constitution, just as we do; but, since a committee of 300 million or more would never work, we entrust it to their care, for our benefit. They have no more right to alter it or ignore it than the average citizen who holds no office. In fact, they have less of a right, because they solemnly promised that they would not.

We, the people, are right to worry that the Constitution no longer applies, because, though it is our refuge and shelter, the protections in it against federal power, especially the powers of Congress, look deteriorated and untended. For the last half-century and more, government officials have slid the old, original parchment to the side of the desk and piled upon it their own interpretations of what it means. They have increasingly replaced the simple agreement with calculations of power, politics, and public relations, such that the average citizen who now bothers to read the Constitution and, then, to insist that it be honored is cast as an unlettered hayseed, or worse, a radical. Such a good citizen is no radical, not in that sense, but perhaps he is a “radical” in the true sense of the word: going to the root of things. Just as we students did in Professor Weiss’s class: reading and considering more of the Constitution as it is than we ever had in our con-law course. It is our agreement, in writing, and — being a few thousand pages shorter than most congressional bills these days — comfortably read in a short sitting. A word here or there may require a lexicon; but, on the whole, it’s clear and understandable. And, it is a document like no other in the world — a sacred agreement among free people.

So, take it. Read it. Accept it. Protect it. Uphold it.

Joseph W. Stuart is a lawyer in northern Virginia.

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