Vail Daily column: What the Constitution says
Editor’s note: This is the 16th part of a series.
So here we are. We have reached the end of the Constitution. For now at least. For as you know, there are other amendments lurking out there which will one day join the pantheon of the United States Constitution.
So where does that leave us?
Well, first, with room for growth. And, secondly, with conflict. But that is by design. One might think that, considering the gauntlet through which a proposed amendment must pass in order to be adopted and become part of the most fundamental laws of this nation, there would be something that at least looked like unanimity as to what an amendment was supposed to mean and how it was to be employed by the time it took its seat among the other seminal laws of the land.
Well … not so much.
‘WORDS MEAN SOMETHING’
Take as an extreme example of an amendment shedding its skin, the 21st Amendment, which flat-out repealed the 18th. Oops. As you will recall, the 18th closed down the spigots with Prohibition and a scosche more than a decade later, the 21st let the good times roll.
Lesser, but not less contentious, examples include the storms that still brew over precisely what an amendment is intended to mean. Take, for instance, the 2nd Amendment — seated among the other Bill of Rights in 1791 — which concerns the right of the citizenry to bear arms. One needs look no further than today’s headlines to realize that what the Constitution says and how its various provisions are interpreted and deployed may be very different things.
But that’s the point.
Former president Bill Clinton is attributed as once having famously said, “Words mean things.” Indeed they do. But how they fall upon the ear and rattle through the hindbrain and the gray matter may be very different things.
When the framers flung the Constitution against the wall of history, they had intended both to resolve conflict and to create it. In the first instance, the adoption of the Constitution was intended to cohere the foundling nation. But … having emerged from robust debate as to precisely how to achieve that goal, the founders realized that in order to cohese, the road map of the Constitution also had to flex. An apt, although imperfect analogy may be the expansion joints which both link and divide a concrete bridge. In order to confer it strength, the span must be permitted to contract and heave under adversity. And the same may be said of the Constitution. In order to be strong, it must be tempered with the ability to twist and torque and bend. That, in fact, may be the greatest wisdom of the whole thing.
As we have traced, several of the amendments are scant little things. They are in fact diaphanous, almost ethereal beings that make mention — but no more than mention — of a concept with much greater implications. Then what they mean is left to the courts parse out and determine.
Who would have reasonably believed when the 14th Amendment — the linchpin of the Reconstruction Amendments — was adopted it would be deployed in the name of such diverse “civil liberties” as affirmative action, reproductive choice and gay rights?
The intent and design of the Amendments — and of the Constitution itself — is to field and weather challenges. While “words mean things,” words alone cannot be comprehensive and all-knowing. The framers recognized that all one can do is float a concept out there, breathe life into it and allow for its viability — and at times for its resuscitation — through vigorous challenge and debate. And that is left to the courts.
What the amendments mean has been advocated, argued, turned, twisted, inverted, distorted, tortured, idealized, wrung out, vivisected and challenged, often advancing what was, or what must have been intended, then left like a mouser’s prize at the court’s feet for it to forensically examine and decide. By this process, the Constitution and its parts advance or retreat mostly by baby steps but at times by giant leaps.
What is next for the Constitution, no one can say with certainty. It will depend upon the facts of a particular matter upon which the theorems of the Constitution may be brought to bear, the construction of the court, the times and context of consideration and things as yet un-thought of or at least untested.
It has been 23 years since adoption of the last amendment which, in the broad scope of the Constitution, was a “nicety” rather than a “muscular” addition. What might be next? What might be the 28th? A campaign finance amendment, perhaps? One requiring a balanced budget? The “Gore Amendment” restructuring the Electoral College? A D.C.-statehood amendment? An amendment limiting the terms of our elected federal representatives? A “personhood” or “non-personhood” amendment? These and others have all been proposed.
What is certain though is this: Even strict constructionists must agree that even if only by virtue of trying to divine the original intent, the Constitution changes. And how it is applied is a reflection of the times. What else must be admitted and admired is that the Constitution gives us strength and unites us as one nation.
It is, perhaps, propitious that the last part of this series runs on “Tax Day,” which owes its birth to the 16th Amendment and is demonstrative of the effect the Constitution has, however quotidian and beneath detection, in each of our daily lives.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, email@example.com or firstname.lastname@example.org.