It’s important – if we want to win the battle of ideas – that we understand the other side’s arguments. Once we do, we can begin to answer their objections. It is my belief that while there are some people who will never see the world the way I do, there are others, more numerous, who just have objections that can be overcome; and that overcoming those objections is a very important matter. For it has been said “a man convinced against his will is of the same opinion still.” In all likelihood, this is a modern adaptation of Samuel Butler’s quote:
He that complies against his will is of his own opinion still.
A long time ago in a different career, I learned about the art of objection handling. In interpersonal communication, whether it’s a sales interaction or just a conversation between friends, people will often resist change or agreement. Complicating matters, they often don’t, or can’t, articulate the real reason for resisting agreement: they have objections, perhaps hidden to one or both, that need to be overcome.
An area of sharp disagreement that I find interesting is on the meaning and purpose of the Constitution. There are people like me who think that it has a fixed and knowable meaning; that it acts as a contract, codifying the specific enumerated things that each branch of government in Washington can do; and that deviating from this view is wrong at best and dangerous at worst.
Justice William Brennan (credit: Library of Congress)
We can call the other side “living constitutionalists” and they believe something markedly different than I do. They see the Constitution as something that should be a guide, perhaps even a basis for a minimal set of rights, but that it certainly doesn’t include all rights and it is the job of the Court, in particular, to recognize that rights are always growing and to stake out new Constitutional ground in recognition and defense of these newly found rights. As a widely recognized proponent of this school of thought, Justice William Brennan noted:
[The] genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.
This is one part of the other side’s argument, and is often called the “dead hand”: times change, we can’t be bound by what people in 1787 thought, we’ve progressed and become more civilized, we know better than they did. At the core, I think their objection is: we want to live in an ever-increasing civilized and compassionate world, so we have to work to eliminate injustice and any inequality we see, that latter of which is, by nature, unfair.
This theory of the Constitution is wrong because it misunderstands the purpose of the Constitution and it sows the seeds for the erosion of rights by its own usage; that is to say that considering the Constitution as a “living” or evolving document and applying that thinking to Constitutional interpretation is self-destructive.
First, there is no mystery surrounding the purpose of the Constitution. We can read the notes on the debates of the Constitution and understand what the purpose was: to remedy the defects of the government operating under the Articles of Confederation, set forth the properly enumerated powers of the “general government” and secure the rights and powers of the people of “these united States” against encroachment from the general government. The Constitution should be read, then, as only referencing the rights of the people in the context of what the new general government could and could not do. It was not intended to be an exhaustive list of the People’s rights, that should be added to as future generations become more enlightened and divine new rights.
In fact, respecting the division of powers (what we call balanced government) is all about the People’s rights: by insisting the government in Washington be limited in its powers, the People have a better chance of securing their rights in their villages, townships, counties and states.
Furthermore, in a direct answer to Justice Brennan’s quote above, the Constitution is adaptable and doesn’t require the judiciary for it to be amended. There are methods of amending it in Article V, methods that have been used before. Creating those mechanisms for amending the Constitution wasn’t accidental: the framers knew that for the Constitution to endure, the People would have the right to alter it as they saw fit.
As to the self-destructive aspect of seeing the Constitution as “evolving” one only need consider that we aren’t guaranteed to always live in a more compassionate and caring world. Imagine that what we today consider “cruel and unusual” (say, severing a hand as punishment for theft) is in a future generation considered “sporting and fun” or merely “acceptable.” Under the evolving standards paradigm of Constitutional interpretation, living in a more barbaric world means that rights and protections we enjoy today are subject to the whims of the immoral (or simply less-moral) tomorrow. The danger of insisting it can evolve with the prevailing morals of one’s time is that the times may one day be quite horrible.
Resolving the objections of proponents (and this piece touches on but one) of a “living Constitution” remains a difficult, but essential challenge for people of any political persuasion who love liberty and wish to ensure freedom for generations to come.
