Reading the results of the latest Pew poll on how to interpret the Constitution, I was reminded of an insightful remark by the great essayist Montaigne:
“It is very easy, upon accepted foundations, to build what you please.”
What really matters, in other words, is the question. Once you’ve framed the problem a certain way, the range of answers is necessarily circumscribed and it becomes much easier to nudge your audience in a particular direction.
Consider the question posed by the Pew Research Center:
“Should the Supreme Court base its rulings on what the Constitution (a) means in current times? or (b) meant as originally written?”
If that is indeed the issue, then it’s a tough one. On the one hand, any honest reader who takes words seriously will want to understand the original text. After all, words have meaning independently of what we would like them to signify and to suggest otherwise is to undermine the possibility of the rule of law. On the other hand, we all live in the 21st century and of what use is a Constitution if it doesn’t speak to the current times? Unless you’re consumed by a romantic love of the past, you need the supreme law of the land to address your current historical condition.
Seen in this light, the Pew Research Center’s binary question no longer really makes sense. It creates a false antithesis between what the Constitution meant when it was first written and what it means today.
In reality, the Constitution means the same thing today as it meant two hundred years ago. And that meaning is the republican framework of government that it creates to address the political questions of the day, whatever these questions may be. The Constitution contains no outdated 18th century policy prescriptions that would cause an enlightened 21st century denizen to recoil in shame. And it is not tied to the material and social conditions of a bygone age. To argue for its relevance and supremacy, is to argue that a free people ought to deliberate, via their elected representatives at the state or federal level, on the issues of the day.
The expression “what the Constitution means in current times” is of course a clever way to speak of a “living Constitution”—the notion that enlightened judges, experts bureaucrats and progressive Members of Congress ought to read in and out of the Constitution whatever rights, policies and institutional arrangements “the evolving standards of decency that mark the progress of a maturing society” call for. Rather than operate within the confines of the natural rights philosophy of the Declaration of Independence and the federal republican framework created by the Constitution, the plain words of the Constitution are to be contorted to yield a bevy of new rights that the federal government is compelled to deliver and an array of powers for it do so.
More perniciously, the designation “living Constitution” is meant to suggest that those who oppose this gross distortion of the language of the Constitution are somehow partisans of a “dead Constitution” who yearn to turn back the clock on two centuries of social and technological progress.
All this to say that you shouldn’t put much stock in the Pew poll’s finding that there is an “ideological chasm over interpreting the Constitution.” Much more telling are the results of a poll conducted by The Federalist Society a few years ago. By a 2-1 margin, voters preferred the President to nominate judges who “believe that their roles as judges is solely to evaluate whether a law or lower court ruling is in line with the constitution” rather than those who “believe that their roles as judges is not simply to review the law as it is written and not take into account their own viewpoints and experiences” (67% vs. 24%).
The real choice is not between the present and the past, but between a natural-rights based understanding of limited government and the Progressive embrace of unlimited government and evolving rights.