Sextant on the Star of Liberty
July 3, 2003
I sat down to reply to a post by my friend (and I don't say that facitieously), Andy Arnold and it started growing longer. Seeing how I haven't posted an article in some time, I've decided to place the response here instead of in the discussion section. Besides, I think it fits well with this time of the year.
[How is it] democratic to permit men who lived 200 years ago so much power when WE did not have a chance to vote or assent to the supreme law of the land? Practically speaking, I understand the difficulty of creating a new constitution every generation, but I do believe there are some interesting theoretical questions.
Ah, I like this train of thought. Notice, there is no name calling or baiting in the question. Andy is right, it is interesting. Oh, I guess you also need to know the Jefferson quotation to which he refers:
As a reformed strict constructionists, I have come to believe that a Supreme Court that can take into account changes in values and circumstances and technology...etc. makes much more sense. For me there is a difference between Lawrence and Roe.
It may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct [not sure what that word is]....The constitution and the laws of their predecessors extinguished then in their natural course with those who gave them being. This could preserve that being till it ceased to be itself, and no longer. Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.
Andy then adds the following which is necessary to understand the rest of the article.
The point is that unless the Constitution can expand and contract to represent the mores, norms, values and beliefs of successive generations, the Constitution is not a living, breathing document but a repressive and stifling document that does not have the assent of the governed.
I'll be the first to admit that I am not a Constitutional scholar. However, Andy did ask for my opinion. . . so here goes!
First, there were more people involved in the creation of the Constitution than Jefferson. My mind turns quickly to Madison as well. I am enjoying (when I can read for a snatch of time) David McCullough's book John Adams. Many would be amazed at the various ideas knocked around as these men formulated our Constitution. While Jefferson expressed the quotation Andy posted, it does not mean that is how we should view the document today (I don't mean to say it carries no weight. It most certainly should be considered, but not in a vaccum).
Second, we are not a true democracy. We are a republic of laws. So, I have no problem saying, "You're darn tootin' it is undemocratic. Hallelujah!"
Third, the structure of our government as laid out in the Constitution allows for the expansion and contraction of mores, norms, values and beliefs for each successive generation. It is the idea of federalism. It is allowing for the states or local governments to form these expansions and contractions. However, the central government continues to seek to take this ability away. Indeed, it most certainly can lead to frustration among the governed. The Constitution was supposed to protect the states from the central government and the individual from being robbed of their inalienable rights by the state and federal governments.
The Constitution and our Bill of Rights is the balance of Jefferson's thought and others who looked for an even more stringent structure. The Constitution is not a living, changable document - but it is a document that allows for governments closest to the people to form their own approaches. It is then both constricting and liberating all at once.
The goal of Jefferson and the others is expressed in our Declaration of Independence. It is the our statement of purpose. It was their vision of what could be.
The workings of how to fulfill that vision is our Constitution. It is our connection back to those men and that ideal. It is the continuity that has remained constant over the last two centuries. In so many ways we have begun to remove ourselves from the intents of those men. Even the Constitution has suffered and is not what it once was.
Last, if there is to be change to the Constitution, the mechanism for doing so was spelled out. It wasn't -- at the time of its formulation nor should it be now -- the Supreme Court. The Court took upon itself the duties it now claims. No longer is it a judge of the government and people to make sure the Constitution is followed. It is now a judge of the Constitution to make sure that it is molded to fit the whims of the culture of its day. Justice Kennedy has said as much. The Supreme Court may cease to be a protector of the Constitution and become its destroyer.
I view our Constitution as the sextant that we place before our eye to see the star of the ideal forseen by our founding fathers. If the sextant once trued by the originators of the vision is altered, then our reading becomes inaccurate and our ship fails to stay on the proper course. So, I'll keep this proven document and remain an unreformed strict constructionist.
Have a great Independence Day!