Original intent vs. living document: Musing about the Constitution

constitutionI’m not an expert on the U.S. Constitution. I’m not a lawyer constitutional or otherwise. But I am a U.S. citizen, I did take Civics 101, and I know just enough to be dangerous. So, when Fox News’ Chris Wallace asked a question about the 2nd Amendment at the third Presidential debate, I was intrigued.

As I recall it [not verbatim], Wallace asked Clinton and Trump to share their views of the constitution as either immutable–as the Founding Fathers originally wrote it–or as a living document that changes with the times. Both candidates–of course–pledged allegiance to the 2nd amendment. Trump elaborated with a half-assed, Justice-Scalia-esque originalist answer. Clinton asserted that, while she “believes in” the 2nd Amendment, she sees areas where changed circumstances justify a less literal interpretation. [She was referring mostly to universal background checks for gun purchases.]

That’s when I started thinking about the role that the Bill of Rights played in the history of the Constitution. If I remember correctly, the original Constitution was signed in 1787. Then, in 1791, the Founding Fathers added the Bill of Rights–a set of 10 amendments to the Constitution that they apparently thought necessary to clarify their intent.

The anti-Federalists of the time had initially wanted to include a Bill of Rights in the body of the Constitution, but they lost that battle. The ensuing Bill of Rights was a way of placating the anti-Federalists. But that means that the Bill of Rights constituted a set of changes to the original document. Right?

Even George Washington anticipated that there would be changes–amendments to the Constitution. In his inaugural address as first president of the United States, Washington said this about the Constitution:

whilst you carefully avoid every alteration which might endanger the benefits of an united and effective government, or which ought to await the future lessons of experience…

I’m focused on the phrase that I emphasized in bold: “…to await the future lessons of experience.”  That sounds like Washington expected circumstances to change in the future that might necessitate amendments to the fledgling Constitution governing his presidency.

So, I’m wondering how we can say that the original Constitution–and even the initial, 10-amendment Bill of Rights—particularly the 2nd Amendment–must  remain unchanged. If we’re trying to figure out the Founding Fathers’ “intent,”  we have to look no further than George Washington’s own inaugural words. He knew things would change. He understood that there would be “future lessons of experience.” As history shows us, they did, and there were. Isn’t that why we now have, for example, the 14th Amendment and the 19th Amendment?

All of which says to me–in my rudimentary, non-PhD way of thinking–that the Constitution was already a “living document” even before the ink was dry on the original piece of parchment. The Founding Fathers were, themselves, the first revisionists of their own creation. In light of all the changes that were added within just a few years of the ratification of the U.S. Constitution, I simply cannot understand the argument that 21st Century rulings must be based on an absolutely rigid reading of the Constitution.

 

  • Stacy Mergenthal

    Great points. Like you, I think that the constitution is a living document is irrefutable. They are called constitutional amendments (to alter, modify, etc.), after all. I didn’t know this before I looked it up but 12 of the 27 amendments were ratified during the founders’ lifetimes and 12 of them were ratified in the 20th century. No matter what position one takes, that’s a pretty decent record of changing the constitution throughout our short history. And when we consider those modifications/amendments…HUGE. Due process. Term limits. The abolition of slavery. Women’s suffrage and expanding voting rights to most adult citizens. We have a rich history of amending the law to address modern concerns. Now we are facing different problems that need legislative attention. There may be a realistic case-by-case argument for not amending the constitution, but not a historical one such as the “founders’ intent” argument.