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By Root 1503 0

I understand the strict constructionists’ reverence for the Founders; indeed, I’ve often wondered whether the Founders themselves recognized at the time the scope of their accomplishment. They didn’t simply design the Constitution in the wake of revolution; they wrote the Federalist Papers to support it, shepherded the document through ratification, and amended it with the Bill of Rights—all in the span of a few short years. As we read these documents, they seem so incredibly right that it’s easy to believe they are the result of natural law if not divine inspiration. So I appreciate the temptation on the part of Justice Scalia and others to assume our democracy should be treated as fixed and unwavering; the fundamentalist faith that if the original understanding of the Constitution is followed without question or deviation, and if we remain true to the rules that the Founders set forth, as they intended, then we will be rewarded and all good will flow.

Ultimately, though, I have to side with Justice Breyer’s view of the Constitution—that it is not a static but rather a living document, and must be read in the context of an ever-changing world.

How could it be otherwise? The constitutional text provides us with the general principle that we aren’t subject to unreasonable searches by the government. It can’t tell us the Founders’ specific views on the reasonableness of an NSA computer data-mining operation. The constitutional text tells us that freedom of speech must be protected, but it doesn’t tell us what such freedom means in the context of the Internet.

Moreover, while much of the Constitution’s language is clear and can be strictly applied, our understanding of many of its most important provisions—like the due process clause and the equal protection clause—has evolved greatly over time. The original understanding of the Fourteenth Amendment, for example, would certainly allow sex discrimination and might even allow racial segregation—an understanding of equality to which few of us would want to return.

Finally, anyone looking to resolve our modern constitutional dispute through strict construction has one more problem: The Founders and ratifiers themselves disagreed profoundly, vehemently, on the meaning of their masterpiece. Before the ink on the constitutional parchment was dry, arguments had erupted, not just about minor provisions but about first principles, not just between peripheral figures but within the Revolution’s very core. They argued about how much power the national government should have—to regulate the economy, to supersede state laws, to form a standing army, or to assume debt. They argued about the president’s role in establishing treaties with foreign powers, and about the Supreme Court’s role in determining the law. They argued about the meaning of such basic rights as freedom of speech and freedom of assembly, and on several occasions, when the fragile state seemed threatened, they were not averse to ignoring those rights altogether. Given what we know of this scrum, with all its shifting alliances and occasionally underhanded tactics, it is unrealistic to believe that a judge, two hundred years later, can somehow discern the original intent of the Founders or ratifiers.

Some historians and legal theorists take the argument against strict construction one step further. They conclude that the Constitution itself was largely a happy accident, a document cobbled together not as the result of principle but as the result of power and passion; that we can never hope to discern the Founders’ “original intentions” since the intentions of Jefferson were never those of Hamilton, and those of Hamilton differed greatly from those of Adams; that because the “rules” of the Constitution were contingent on time and place and the ambitions of the men who drafted them, our interpretation of the rules will necessarily reflect the same contingency, the same raw competition, the same imperatives—cloaked in high-minded phrasing—of those factions that ultimately prevail. And just as I recognize the comfort offered