Vail Daily column: Nothing endures but change
February 22, 2016
The ancient Greek philosopher Heraclitus discovered life's always on the move; it's dynamic. Heraclitus' years didn't stay put; they weren't static. He taught, "Nothing endures but change."
After studying law, Thomas Jefferson endorsed Heraclitus' conviction about constant change as life's dynamic. He believed the Constitution needed flex in order to judge looming trends.
Jefferson floated a theory about re-writing our nation's founding documents. After surveying genealogical tables, he deduced that a new generation springs to life every 19 to 20 years. Jefferson abhorred having future generations shackled by crusty laws from prior eras. He believed the Constitution evolved or devolved; leaped ahead or fell behind; progressed or digressed, like flux in life.
He suggested to colleague James Madison that citizens shred The Declaration of Independence and the Constitution every 20 years and start afresh. This way, legal rulings wouldn't atrophy and constitutional principles would arise to meet emerging trends.
Madison sympathized with Jefferson's intent not to tie current laws to out-molded statues. However, he advised Jefferson to abandon rolling-over the Constitution every two decades. Too much re-writing of founding documents undercuts the Republic's strength by robbing it of continuity. Jefferson's intent was good, but relentless change causes constitutional havoc.
Writing to another Virginian in 1816, Jefferson concluded, "Laws and institutions must go hand-in-hand. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances. Institutions must advance, also, and keep pace with the times. We might as well require a man to wear still the coat which fit him when a boy, as civilized society to remain ever under the regimen of the barbarous ancestors."
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Doctors remind patients at physical exams that Jefferson's wisdom applies to healthy body, mind and spirit. "Use it or lose it," physicians say. We can't wrap our bodies in gauze to keep a 20-year-old's physique. Our bodies grow or become infirmed.
Similarly, the Constitution thrives on dynamic principles. Some progressive Supreme Court Justices adapt it to fit emerging constitutional challenges. Associate Supreme Court Justice Oliver Wendell Holmes wrote elegant decisions that rival those of the late jurist Antonin Scalia. In 1914, Holmes declared "the provisions of the Constitution aren't mathematical formulas (that is, constant in every age). (Constitutional provisions) are organic living institutions."
Associate Justice Scalia, appointed by President Ronald Reagan to the Supreme Court in 1986, argued vigorously and erroneously against Jefferson's and Oliver Wendell Holmes' organic view of the Constitution. Scalia, a brilliant strategist with a wicked sense of humor, believed in "originalism," what he called "textualism;" that is, reading the Constitution as its crafters originally meant it to be taken at its adoption in 1787.
Scalia didn't respect the Constitution as a living, organic document. He believed it lacked flexibility to accommodate its message to new social realities. Scalia insisted the Constitution's meaning remains fixed within the colonial times in which it was written, except when changed by amending it. Or, as he curtly declared, "(The Constitution) "is dead, dead, dead." Not "dead" in the sense that its authority has wasted away, but "dead" in that the constitutional text is dead-set. Its meaning is frozen in a certain colonial era. Scalia may have believed in Heraclitus' maxim that "nothing endures but change," except in the case of the Constitution.
He wrote vigorous dissents against expanding civil liberties in areas that the white, male founding fathers didn't conceive in 1787. He objected to the Supreme Court's landmark decision on expanding gay rights because the Constitution's framers assumed the 18th century model of traditional marriage between one man and one woman. Scalia denounced the Supreme Court's affirmation of abortion rights because founding fathers embraced primitive medical knowledge that only allowed for natural abortions, called miscarriages.
Scalia built his house of constitutional originalism on shifting sand. Jesus warned of "a foolish man who built his house on sand" that collapsed because "rain fell and floods came, and the winds blew and beat against the house" (Matthew 7:26-27).
Scalia buries his originalist argument in sand because he takes an historical leap of faith. He's confident of mentally transporting himself back to the colonial era in which the Constitution originated. He wrongly assumes telepathic capability of returning in a judicial time-machine to the Constitution's birth. He presumes, then, the ability to clearly access the document's original meaning.
That's a fool's trip. James Madison invented his own shorthand by which he took copious notes at the Constitutional Convention in 1787. Scholars estimate that he captured 5-10 percent of the delegates' comments. Consequently, today we lack the raw, original content which supposedly has guided Scalia's legal deliberations. Because originalists aren't able to retrieve enough constitutional data, they get buried in a juridical house of sand.
Thomas Jefferson shows us a better way. The Constitution guides our diverse nation in a changing, complex world. "Nothing endures but change" applies to the Constitution, as it does to life.
The Rev. Dr. Jack R. Van Ens is a Presbyterian minister who heads the nonprofit, tax exempt Creative Growth Ministries (www.thelivinghistory.com).
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