TIME’s Alex Altman described the Congress’ opening the 112th Congress with a reading of the Constitution as “fetishism” in his post entitled “The Cult of the Constitution.”
Others have ridiculed the Republicans’ recitation of the Constitution as a “gimmick,” an “obvious sop to the tea party movement,” and a exercise for a “document whose recent relevance is due largely to the ideological and sartorial interests of the Tea Party.”
Pete Wehner, of the former Bush Administration, says in Commentary Magazine that “for many modern-day liberals, the Constitution is, at best, a piece of quaint, even irrelevant, parchment.”
Dahlia Lithwick (another writer who describes Tea Partiers as having a “fetish for the Constitution”) says in Slate that “unless Tea Party Republicans are willing to stand proud and announce that they adore and revere the whole Constitution as written, except for the First, 14, 16th, and 17th amendments, which totally blow, they should admit right now that they are in the same conundrum as everyone else: This document no more commands the specific policies they espouse than it commands the specific policies their opponents support.”
What exactly is the argument here? Why is this a divisive topic? Well, it’s not really divisive, it’s political. No one is saying that the Constitution ought not to govern our country, or that we ought to do away with it altogether. Neither are they saying that the Constitution isn’t sufficient to govern the country, though Ezra Klein of the Washington Post does argue that the Constitution is impossible to understand because it’s over 100 years old:
Every politician is trying to say that theirs is the party of the Constitution, and the other party has distorted the Constitution. Everyone reveres the Constitution, but tries to use it to snipe at the other party.
Living document vs. originalism
But there is a legitimate difference of opinion here. There are two camps: one that says that the Constitution should be a document that adapts to the changing environment that it’s in; the other that says that the Constitution ought to be interpreted according to the original intent of the framers.
The first camp, those who believe the Constitution is “living document,” believe that the founders of the country could not have foreseen some circumstances that confront us today (for example, gay marriage or abortion), and the Constitution needs to be interpreted to deal with those circumstances when they come up. So, when the abortion issue came up in 1973 in Roe vs. Wade, the U.S. Supreme Court decided that the 14th amendment of the Constitution provided for a right to privacy:
“Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The second camp, the “originalist” camp, believes that the Constitution ought only to say what it says and no more, and ought to be interpreted (by both Congress and the Supreme Court) strictly by what the founders meant, which necessarily limits the power of the Supreme Court. This led Byron White, a justice on the Supreme Court in 1973, to write,
“I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand.”
For Christians, the problem with the “living document” view is that it places certain individuals above the law: those individuals that are charged with meting out justice. The Bible, in several places, indicates that everyone is to be subject to the (civil) law, even the leaders (kings, judges, etc). Here’s one example from Acts, where Paul lights into a judge who is judging him improperly:
“God is going to strike you, you whitewashed wall! Are you sitting to judge me according to the law, and yet contrary to the law you order me to be struck?” (Acts 23:3)
Here, Paul is saying that the judge is under the law (human law, not God’s law). If one takes the “living document” view of the Constitution, then they are saying that the justices of the Supreme Court are not under the Constitution, but they create the Constitution.
Dahlia, I am able to stand proud and announce that I revere the whole Constitution as it is written, including the 1st, 14th, 16th, and 17th amendments. If I want to change anything about the Constitution, I’ll advocate for a Constitutional amendment, instead of running to nine unelected judges, asking them to say it’s OK to pervert its meaning. You should, too.
Do you think the Constitution is a “living document”? Or are you an “originalist”?