Living document--is this like, um, a living bra?

By Joseph Walther

Various people, to describe the way we interpret our Constitution, have used two contrasting terms. They are, “originalist view” and “living document view.” U. S. Supreme Court Justice, Antonin Scalia, contrasted them during his speech at the University of Delaware this past Friday evening. Justices Scalia and Thomas are strict “originalists”, while the others, to varying degrees, subscribe to the “living document view.”

There is another view that I call the “duh! view.” No one has mentioned it because I just made it up. And, it’s not at all politically correct. Regardless, it’s out there and I’ll get back to it later.

Here’s an excerpt from our Declaration of Independence, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness.” Just as these words assume absolutes, so does the “originalist view” to our Constitution. We declared ourselves “free” and “independent.” The Constitution laid out the rules that our founders thought would be the best way to ensure our freedoms and independence in perpetuity.

There is an inherent danger associated with declaring truths to be “self-evident.” We assume that everyone, everywhere, thinks the way we do. They don’t. There are a tad more than six billion people currently living on this space rock we call home. Most of them do not enjoy the freedoms that we, in the United States, take for granted. In fact, to a sizeable percentage of them, rights are not unalienable and “life,” “liberty,” and the “pursuit of happiness” are just meaningless words.

It’s a nice, comforting thought to believe that a “Creator” endowed all humans with such “unalienable rights.” It provides a feeling of built-in humility about what we believe and how we act. After all, we didn’t give ourselves these rights; we were born with them. We’re just defending them, not only for ourselves, but also for others who can’t. Yes, very comforting and righteous, indeed.

Speaking for myself, I do not know if a Creator created us, let alone endowed us with rights. I do know this, though. In the natural world, the only rights that ANY of us have, no matter where we live, are the ones we are willing AND able to defend, even to the death, if necessary.

We, the citizens of the United States, have always been willing and able to defend our rights. THIS is the reason we have rights in the first place. No one gave them to us. We took them. It’s the reason we’ve remained free and independent. Eliminate either the willingness or ability and we’ll no longer have any “rights.” We’ll be free to ponder all the Creator-bestowed “self-evident” truths we want, but to no avail. Like many others in the world, “life,’ “liberty,” and the “pursuit of happiness” will be meaningless words.

When it comes to interpreting the United States Constitution, I think we’re stuck with doing the best that we can, given the circumstances that confront us at a specific time. In other words, the “originalist view” does not make much sense. Here’s why.

Do you ever wonder if the United States will still exist in 220 years? I do. If so, under what conditions will our citizens have to live? Will we be a superpower? If we of 21st century America had to write a constitution from scratch in 2007, which human protections would we include? Sound far-fetched? Think about it.

September 17, 2007 will mark the 220th anniversary of the final draft signing of the United States Constitution. Essentially, the Big Bang of our Constitutional occurred on that day in history. What motivated its designers to include the human protections that it did?

The politicians of that year, like those of today, based their actions on the circumstances surrounding their lives. They were people of means, movers and shakers of their time who could afford to “serve others.” They changed things because they didn’t like the living conditions. The resultant Declaration of Independence and Constitution have endured for centuries because those folks built in the ability to change things whenever necessary. What we have to guard against is changing things that we shouldn’t change.

The Constitution did not address the death penalty. We’ve imposed one, off and on, over the past 200 plus years, just the same and, for a lot less than capital murder. We used to hang horse thieves. Additionally, Justice Scalia quickly pointed out that the Constitution didn’t address abortion, either. Agree or disagree with the outcome, it does now. In addition to other protections, it did address gun ownership, religious freedom, and the assumption of innocence until proven otherwise.

Since, the Constitution did not deal directly with many of today’s issues; do you think there’s a common thread to all those that our founding fathers made sure to include directly? I do, and I think the word “contemporary” has a lot to do with it.

For example, under the British Crown, there was an “official” religion. Our founders didn’t like that. So they considered freedom of religion very important and barred our federal government from establishing one. The British Crown didn’t assume the innocence of people it accused of crimes. Essentially, they assumed prisoners guilty until they proved themselves otherwise. The Brits didn’t need warrants, either. They could just kick your door in and take you away. So, our founders protected us against this sort of thing. Oh, yes, they also felt that guns were essential to protecting our new way of life.

Everyone, at that time, knew that a “tooth for a tooth” was perfectly righteous and logical. There was no need for the Constitution to cover executions. Besides, it was a local issue, up to the local authorities and citizens. It was a private matter.

Abortion was not an issue for them, either. They were all men. Women had no rights other than those bestowed upon them by their fathers or husbands.

Oh, there were abortions. If slave owners wanted to abort their slaves’ pregnancies, they strung the pregnant slave up by the arms and beat her about her buttocks and lower back with a paddle until she bled. Free woman had them, too, especially if the pregnancy was an embarrassment to the family. It’s just that families undertook them under much more clinical and gentle conditions. I don’t know how medically safe they were. Come on. We didn’t know about germs at that time! At any rate, their families took care of things… privately. It was no one’s business.

During his speech, Justice Scalia said that answers to questions about “the death penalty, assisted suicide, and homosexual sodomy are absolutely clear for the originalist.” I agree. They are. But, absolutism is always the precursor of simplistic solutions. To such people, the death penalty is righteous revenge, assisted suicide is wrong, and homosexuality is immoral. The bible has already declared it. So, why involve the Constitution?

Yes, 220-years ago, the delegates to the Constitutional Convention of 1787 signed the final draft of a document that covered contemporary issues. They were protecting themselves and, to some extent, future generations. Contemporarily, they were quite sure of themselves. As to future generations, I don’t think they were as sure as Justice Scalia claims.

Yep, one thing differentiates the politicians of that day from today’s. Those people knew that they didn’t know everything. As though it were instinctive, they seemed to sense that they had too little insight into long-term future issues. The year, 2007 was inconceivable! What makes me think this? It’s a dead giveaway: Article V of that very Constitution.

They gave us a way to change the Constitution, just in case. To me, this ability to change things was the genius of the whole exercise. They made it tough to change it; but they made it possible as long as enough people believe it needs to be changed. Not everyone has to agree, but enough of the country does.

Going back to my original premise, I think that if we were starting from scratch in the year, 2007, we’d write a document based on contemporary issues, with an eye towards those that we think might confront future generations, the same as our forefathers did in 1787. The difference is that we have infinitely more technological advantages that make our ability to predict the future more accurate than theirs was. We’d probably be more accurate predicting out from the years 2007 to 2227, than our founders were about predicting out from 1787 to 2007. But, we’d still build in a mechanism for change because life has always changed and always will.

I believe that Antonin Scalia is wrong in his “originalist view.” Don’t take me the wrong way. I think he’s a decent man, very likeable, witty, charming, and intellectually adept. However, I’m not going to get all bubbly-eyed over his, though. He just proves that Neanderthals still live here AND that they can be nice, witty people.

Now, about that “duh! view” of the Constitution that I mentioned earlier. If you are not sure of what the Constitution is or the things that it protects against, you’re probably a subscriber. Do the country a favor and take a course. Better, still, read the Constitution.

I’ll be back next week. At least that’s the plan, my “living document view” of the Constitution notwithstanding.

Joseph Walther is a freelance writer and publisher of The True Facts. Copyright laws apply to all material on this site. Send your comments. Just click here.