Demagogue

Sausage-Neck Goldberg has a new article up defending was he calls the "dead constitution."

Conservatives aren't merely anti-living Constitution - we are pro-dead Constitution. In order for us to live in freedom, the Constitution must die (Faster, Federalist Society! Kill! Kill!).

The case for dead constitutions is simple. They bind us to a set of rules for everybody. Recall the recent debate about the filibuster. The most powerful argument the Democrats could muster was that if you get rid of the traditional right of the minority in the Senate to bollix up the works, the Democrats will deny that right to Republicans the next time they're in the majority (shudder).

The Constitution works on a similar principle, as does the rule of law. Political scientists call this "precommitment." Having a set of rules with a fixed (i.e., dead, unliving, etc.) meaning ensures that future generations will be protected from judges or politicians who'd like to rule arbitrarily. This is what Chesterton was getting at when he called tradition "democracy for the dead." We all like to believe that we have some say about what this country will be like for our children and grandchildren. A "living Constitution" denies us our voice in this regard because it basically holds that whatever decisions we make - including the 13th, 14th, and 15th Amendments - can be thrown out by any five dyspeptic justices on the Supreme Court. In other words, the justices who claim the Constitution is a wild card didn't take their oath to uphold and defend the Constitution in good faith because they couldn't know what they were swearing to.

I am going to ignore most of his arguments and instead just make the point that ideas of a "dead constitution" or "original intent" seem inherently flawed because they require two impossible things:

1. That we know (or even can know) what the specific language of the Constitution meant to those who wrote, signed, and ratified it.

2. That those who wrote, signed, and ratified the Constitution agreed on what the document meant.

I have been thinking about this because I have recently read a few books on the creation of the International Criminal Court. The statue was drafted in 1998 and nearly every world power was involved in its formation and still, only 7 years later, nobody really knows exactly what all of its provisions mean. In fact, the vagueness of the statue itself is one of the main things that allowed 120 disparate nations to adopt it.

After weeks of discussion and rewriting, the statue ended up in a state that allowed nearly everyone involved to read their preferred interpretation into it. Nations that wanted certain protections got language specific enough that it could be argued that such protections were included, while those who opposed the protections got language vague enough to suggest they were not. But it was the same language, written in a manner that satisfied both sides.

The point is that the statute is only 7 years old and the people who wrote and adopted it are still alive - and even they don't agree about what all of the provisions mean.

Or consider the "Memorandum of Understanding" to averted the showdown over the filibuster. That is only a month old and nobody really knows what "extraordinary circumstances" means.

So why are we to assume that we can know what the Framers' of the Constitution intended the document to mean, or assume that those who ratified it all agreed on a specific meaning more than 200 years ago?

The Constitution is chock full of vague terms: Advice and Consent; Necessary and Proper; Cruel and Unusual; Privileges and Immunities, just to name a few. Obviously, specific language in the Constitution is specific because, presumably, everyone agreed on it. But, by the same token, vague language is vague because it allowed all sides to read into it their preferred interpretation.

I am not defending the idea of a "living Constitution" here, but merely pointing out that adherence to a static, unchanging Constitution requires one to assume that a clear and widely-shared understanding of its specific meaning once existed. And given the specificity/vagueness trade-offs necessary to even draft and agree upon the language contained within a document such as the Constitution, I don't think such an understanding ever existed.