Not many kids were like me, but, yes, I’ll admit I debated the Constitution in middle school. Our understanding of the Constitution had grown since elementary school (the days when we yelled, “It’s a free country!” whilst slamming another kid’s head into a pole), but it was still pretty simplistic:
“It’s soooo old!”
“But the Founders were pretty smart guys.”
And you might have even heard one of us, we silly 6th graders, say something like this to discredit the founding:
“Here are a few things the framers did not know about: World War II. DNA. Sexting. Airplanes. The atom. Television. Medicare. Collateralized debt obligations. The germ theory of disease. Miniskirts. The internal combustion engine. Computers. Antibiotics. Lady Gaga.”
And that’s the kind of argument Richard Stengel of Time puts forth in the cover article about the Constitution. He purports to further our understanding of the Constitution and to mediate between the left and right- and utterly fails at both; in addition to making a particularly unpersuasive case for the Living Constitution. I’m happy to concede that I’m no constitutional scholar- but I’d like to think I’ve wrestled with some of the issues the Constitution presents. It’s just not obvious that Stengel has as well.
As you might guess, he immediately sets up a strawman about originalists: the founders didn’t know about xyz, so how can we still accept the document they created? Fair question, but as he later explains, for the Founders (as it remains today), the Constitution “was a set of principles, not a code of laws. A code of laws says you have to stop at the red light; a constitution has broad principles that are unchanging but that must accommodate each new generation and circumstance.” Yes, precisely. This is hardly a profound insight- one that, in fact, every originalist, conservative, whomever would agree with. Justice Scalia has time and time again agreed with that idea.
But for Stengel’s argument, destroying this (mythical) idea of the Constitution as a “traffic cop” is a necessary exercise. Once he convinces us that originalists actually believe that the Constitution “has a clear, fixed meaning,” he can supplant his own ideas in its place: that “[t]he Constitution works so well precisely because it is so opaque, so general, so open to various interpretations.” Basically, pay lip service to the Constitution while we do what we damn well please.
Well, no. The Constitution works so well because it allows augmentation (as Hannah Arendt argued in On Revolution), meaning later generations can modify the document to take into consideration changes that the Founders happily admitted they could not foresee- as he says, “it was not written in stone.”
More importantly, while various interpretations are possible, there are interpretations that aren’t- just like there can be multiple readings of the epilogue in The Tempest, but aside from the Keunian perspective (an historicist claim that it’s asking for applause) and its corollary (that it’s meant as Shakespeare’s farewell to the theater), there’s not much else that would be correct. There’s a limited range of interpretation. He even makes the analogy that the Constitution acts like a “guardrail”- we can drive anywhere we want on the road, but what he seems to forget about guardrails is that they don’t let us leave that road.
Stengel plays this game most obviously when he tries to argue that the Constitution is ambivalent about the individual mandate. And not only is it ambivalent, he contends it’s kind of silly to even argue the case on constitutional grounds.
Ummm…
There’s actually a lot riding on that very question. He gives the usual litany about car insurance, taxes, serve on juries, etc.- ignoring the fact that the latter two are actually in the Constitution, while if you don’t own a car, you don’t have to buy car insurance. What the individual mandate does is say, “You exist. You have to buy health insurance,” a position that is unprecedented whether or not you agree with it.
His agenda becomes clear towards the end of the article (if the snipes at President Bush didn’t give it all away) when he says: “[W]e cannot let the Constitution become an obstacle to the U.S.’s moving into the future with a sensible health care system, a globalized economy, an evolving sense of civil and political rights.”
In other words, “The Constitution as written stands in the way of the agenda I want to implement.” We ought to let me and like-minded individuals have free reign!
So basically, all this article amounts to is a poor regurgitation of John Dewey and past thinkers on the left who developed the idea of the Living Constitution because it very much stood in their way.
It’s ironic he titled his article, “One Document, Under Siege” because the only reason our Constitution is “under siege” is the kind of Living Constitution Stengel advocates. Sure, there are Tea Partiers who take their devotion to the other extreme, but if the Constitution actually means something, then Stengel & Co. need to change their tune. If not, then let’s just scrap it and start anew. That’s what some of my sparring buddies argued for over our bagged lunches. At least they were being intellectually honest.