Vail Daily columnist Jack Van Ens: Jefferson envisioned living Constitution
Tea partyers urge Congress to play “Lost and Found” with the Constitution.
What’s lost, they say, is the ratifiers’ original meaning. Sarah Pali and Glenn Beck believe the founders’ constitutional intentions are fixed and knowable, not subject to cultural trends. What the Constitution’s framers in 1787 articulated in its text must be retrieved, they assert. “Originalists” claim the Constitution’s interpretation can’t stray from how its colonial writers understood and interpreted it.
Those who adhere to a “living Constitution” perspective rebut judicial originalists. They say high courts create constitutional principles when jurists consider major cultural trends, what former Justice Oliver Wendell Holmes proposed as a legal codification of “the felt necessities of the times.”
One of these felt necessities outlaws slavery in the United States. When Republicans and Democrats read the Constitution on the House floor, they skipped the passage that counts slaves as three-fifths of free persons. Here’s an instance where the Originalists deferred to Living Constitution advocates.
Tea partyers beckon our nation to enter a time machine, revisit the Constitution and bring it back to the future. By this maneuver, they intend to restore exceptional America to its former greatness.
Tea partyers clash with Thomas Jefferson and James Madison, who contradict this fanciful search to retrieve the lost Constitution. These founders treated the Constitution as a living, evolving document bound to no particular era. Though the Constitution articulates enduring principles that our nation cherishes and practices, these values must be reinterpreted in every era because social developments impinge on them.
Jefferson and Madison didn’t regard the Constitution as a secular counterpart to the Ten Commandments chiseled on tablets. The Constitution isn’t set in stone because its principles aren’t impervious to the flow of cultural developments.
Jefferson worried that America’s devotion to the Constitution might get unbalanced if treated like a sacred text whose meaning magically floats above history’s currents.
Writing to a friend in 1816, retired President Jefferson didn’t sound retiring. He ridiculed the Glenn Becks and Sarah Palins of his day who “look at constitutions with sanctimonious reverence and deem them like the arc (sic) of the covenant, too sacred to be touched”; “who ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to go beyond amendment.”
“Let us follow no such examples,” Jefferson cautioned, “nor weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs. Each generation is as independent as the one preceding, as that was of all which has gone before.” Jefferson didn’t want his present generation hamstrung by prior laws appropriate for another time and place. He warned that the Constitution should be respected but not venerated, as pilgrims treated holy relics in medieval days.
James Madison, the Constitution’s major framer and protector, gave thumbs up to Jefferson’s insistence that this document be treated as a living treatise.
“The whole concept of original intent, therefore, makes no sense,” conclude husband-wife biographers Andrew Burstein and Nancy Isenberg in their book Madison and Jefferson (Random House, p. 641, 2010). “It is a legal fiction that grossly oversimplifies Madison’s thinking. The truth is, his interpretation of the Constitution changed over the course of his lifetime, and original intent assumes that Madison’s views were permanently fixed in time.”
How, then, should we interpret the Constitution, lest it stultify and lose its ability to speak to current controversies?
Start with the C.S. Lewis’s caution about what really counts as original. He warned against thinkers, inventors and con artists who trick us into believing they have discovered what no one previously surmised.
“Really great moral teachers,” wrote C.S. Lewis, “never do produce new moralities. It is the quacks and cranks who do that.”
Take what’s enduring, whether it’s in Scripture or in a play or embedded in constitutional principles and interpret what’s worth saving in a new light. That’s what Jesus and Shakespeare did.
Conservatives fought with Jesus over prohibitions in Jewish sacred law. Reflecting a tea party mentality, Scribes and Sadducees slavishly devoted themselves to laws oblivious to social changes. Jesus put new twists on these laws. He relaxed their rigid formulations without disavowing their spirit.
“Think not that I have come to abolish the law and the prophets,” he declared in the Sermon on the Mount. “I have come not to abolish them but to fulfill them” (Matthew 5:17). Jesus treated sacred laws as living documents, which evolving insights and social pressures might emend.
Shakespeare, also, spun new scenarios from old scripts. His plays borrow from the past. He revised plots and characters from vintage sources-like Plutarch and Holinshed. Shakespeare took what’s old and gave it new literary twists.
The Constitution is a living document. Its meaning evolves beyond its original intent.
The Rev. Jack R. Van Ens is a Presbyterian minister who heads the nonprofit, tax-exempt Creative Growth (www.thelivinghistory.com), which enhances Christian worship through storytelling and dramatic presentations aimed to make God’s history come alive. Van Ens’ book, “How Jefferson Made the Best of Bad Messes,” is available in local bookstores for $7.95.