Sunday, September 12, 2004

The Constitution: A living document?

Looking beyond the text a matter for debate

By Ray Cooklis
Enquirer staff writer

America, it is said, has a "living Constitution." In fact, the notion is so ingrained it has become a cliché. Junior high students lug home civics textbooks with that title.

But what does that mean? Is it true? If so, is that a good thing?

We can agree the U.S. Constitution - along with the Bill of Rights, now considered part of the core document - is "living" in one sense: It has been around longer than any other such document, and continues to be our civic touchstone - and the model for emerging democracies worldwide. On Friday, many Americans will celebrate the 217th anniversary of the Constitution's signing.

• Freedom of speech/press: There's evidence these First Amendment concepts were intended to prevent prior restraint, but not punishment afterward. The controversial Sedition Act of 1798, which expired in 1801, was aimed at those who would "write, print, utter or publish ... any false, scandalous and malicious writing or writings against the government ..." Over the years, consensus grew that a wide range of expression could not be punished. In 1964 the Supreme Court declared "that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.''

• Establishment of religion: Many scholars believe this clause in the First Amendment was intended to keep the federal government from establishing or sponsoring an official national church because this might cause friction among the states, each of which was dominated by one sect or another. The intent was not a "separation of church and state," a notion that is not even in the Constitution, but in a letter Thomas Jefferson wrote 15 years later. But as the nation became more diverse, that view changed. In 1947, the Supreme Court ruled that the Establishment Clause forbids practices that "aid all religions," not just those that prefer one over the other. That has led to rulings against school prayer and public displays such as the Ten Commandments tablets in Adams County schools.

• Cruel and unusual punishments: This Eighth Amendment phrase was criticized as too vague when proposed, but was deemed necessary to halt practices such as cutting off ears, burning alive and disembowelment. "Cruel" and "unusual" are terms whose meanings have changed with American society. As Chief Justice Earl Warren wrote in 1958, "The (8th) Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." That has motivated states to abandon the gas chamber, then the electric chair (including Ohio's "Old Sparky," by order of Reginald Wilkinson, state director of corrections), and increasingly is invoked as an argument against capital punishment itself.

But the other sense - as a growing, flexible thing that should adapt to changing times and a changing society - has been the subject of controversy for more than a century, and still can generate heated arguments. We see the effects of this debate in everyday life. In our area, those include concealed-carry laws in Ohio and Kentucky, anti-pornography cases and the Mapplethorpe exhibit trial, the Klan cross and religious displays on Fountain Square, and even gay rights issues related to Article 12.

Until the 20th century, the "originalist" view of the Constitution held sway. There are several variations on this philosophy, but it generally meant that judges should interpret the Constitution as its framers intended it and would themselves interpret it, using the text itself plus other documents of the time, such as the Federalist Papers.

Joseph Story, a prominent 19th century legal scholar, wrote that the Constitution has "a fixed, uniform, permanent construction. It should be ... not dependent upon the passions or parties of particular times, but the same yesterday, today and forever." Judges should not stray from the text's literal meaning, and the only proper way to change the text was by formal amendment - what Alexander Hamilton called "some solemn and authoritative act."

But another view began to emerge in the mid-19th century, inspired by the cutting-edge science of the time - specifically, Charles Darwin's theory of evolution. Legal thinkers began to draw an analogy to a living organism that changes and adapts over time. By the start of the 20th century, Progressivists such as Justice Oliver Wendell Holmes (of "falsely shouting fire in a theater" fame) were arguing that the Constitution "must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago." Holmes said the law was not a matter of absolutes but of the "felt necessities of the time," to be justified by how it contributes "toward reaching a social end."

To put it another way: Where the 19th century saw the Constitution as a set of immutable laws like Newtonian physics, the 20th century viewed it in terms of Einstein's relativity, in which everything depends on where - or when - the observer is situated.

The catch is that judges were the ones to decide how it was evolving. In the 1930s, Chief Justice Charles Evans Hughes put it bluntly: "We are under a Constitution, but the Constitution is what the judges say it is." Others argued that courts have the right to amend it, and that the Supreme Court is a continuing constitutional convention.

But if, as the Declaration of Independence asserts, government "derives its powers from the consent of the governed," how can judges who are unelected by the governed decide to increase those powers?

That's one of the arguments made as part of an originalist revival in recent years. These critics warn that judges who decide to make a "politically correct" ruling, then find some way to justify it through a creative interpretation of written precedent, can't keep doing that forever. The Constitution's language, notes Stanford history professor Jack Rakove, "cannot be infinitely malleable." Stretch the text too far, and it may snap.

Critics also point out that the Constitution hasn't "evolved" consistently, but only in a socially liberal direction: The power to forbid any "establishment of religion" expands, for example, while the companion guarantee to the "free exercise thereof" shrinks.

It's not that the framers didn't foresee these changes - or the turmoil that might result.

James Madison and Thomas Jefferson debated the idea that each generation of Americans should write its own constitution. Jefferson sneered at the "sanctimonious reverence" some would hold for a mere historic document. Madison fretted that without some reverence for continuity, a nation could not have the "requisite stability."

Perhaps both were right. Perhaps we really have two constitutions - the written one, which provides a rational continuity, and an unwritten one, which embodies the basic principles behind the document as we now understand them.

Take the "right to privacy." Many Americans assume it is one of our basic rights, but it is not directly addressed in the Constitution. Instead, it has been created over many decades, using the Fourth Amendment's guarantee against "unreasonable searches and seizures," and especially the 14th Amendment's principles of due process and equal protection. Courts have carved out legal zones of privacy around marriage, families and individuals, overturning laws that required public school attendance, prohibited the use of contraceptives, and more. Last year in Lawrence vs. Texas, a decision that threw out a Texas sodomy law, the court argued that because of the constitutional right to privacy, the government cannot impose a moral point of view on Americans.

Sometimes, the written and unwritten versions conflict. Literally, the Constitution was constructed to preserve the 18th century status quo regarding slavery, but it was soon read to assert the principle that human rights must be expanded and extended.

But we live with such conflict, and muddle through the uncertainties the Constitution will always present. As Justice William Brennan wrote, "It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on the application of principle to specific, contemporary questions."

Your Constitution

During the coming months, we will look at constitutional issues as they arise in our region. This coming Friday is Constitution Day, the 217th anniversary of the document's signing. Observances are at the National Constitution Center in Philadelphia (www.constitutioncenter.org), and at many schools and universities. The William Howard Taft National Historic Site, 2038 Auburn Ave., hosts a lecture on the Constitution at 11 a.m. Friday by Hamilton County Court of Appeals Judge Mark Painter.


Ray Cooklis is assistant editorial page editor for the Enquirer. Contact him at rcooklis@enquirer.com or phone (513) 768-8525.

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