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Vail Daily column: Life and the Constitution are in flux

Jack Van Ens

Folk wisdom reminds us that it’s impossible to dip our toes twice in the same stream. Even though a river’s name remains unchanged and its surface looks the same, currents beneath waves cause flux in the river. It’s awash in constant change.

The same dynamic applies to the Constitution. It’s meaning isn’t set in stone. Jurists differ regarding their interpretations of it. As with life, the Constitution’s meanings remain fluid, shaped by life’s shifting values and emerging trends.

“Go with the flow,” is how the Greek thinker Heraclitus expressed this truth about constant change as life’s chief trait. He pictured life as a river with swirling rapids and tranquil pools hugging banks. Because rivers and our lives are constantly in flux, change is inevitable. We can’t freeze a river in place. Nor can we keep rewinding a frame in life’s unfolding reel.

Moreover, the Constitution acts like a river in that its flow of meanings are influenced by on-going events that change traditional convictions.

Judge Neil Gorsuch rejects handling the Constitution as a fluid document. Like his mentor the late Justice Antonin Scalia, whose seat he expects to occupy on the Supreme Court, Gorsuch’s rulings are determined by a faulty brand of constitutional interpretation. It’s dubbed “originalism,” or “textualism,” in which Gorsuch assumes we can recover exactly what the Constitution originally meant to our nation’s Founders.

What is “originalism?” It is a belief that the Constitution’s meaning is fixed and static. The Founders’ words at the Constitutional Convention in 1787 mean exactly what they mean today. Other Supreme Court Justices disagree because they treat the Constitution as a living document in flux caused by changing times impinging on its interpretation. Though Justices Stephen Breyer and Elena Kagan respect the Constitution’s historical setting and text tied to its time, they believe this founding document speaks to and is influenced by changing times.

Judge Gorsuch ties his rulings to the constitutional text in its original form as the Founders read it. Does he assume a mental time machine exists that transports him to 1787 when the Constitution was written? Then he’s able to uncover the Founders’ original intent in drafting it.

The Constitutional Convention in 1787, however, was shrouded in secrecy. Debaters spoke behind closed doors and shuttered windows. James Madison took copious notes of these proceedings, but they come up short. When these notes are read in their entirety and then compared to the times the Constitutional Convention held meetings, there’s a huge discrepancy. Constitutional deliberations took much longer than how long it takes to read Madison’s terse notes. He couldn’t retrieve all the delegates’ debates over governance. It’s a fool’s errand to assume we can go back in time to recover the Founders’ actual intent.

Thomas Jefferson corrects Gorsuch’s faulty view that the Constitution’s meaning is stagnant. In contrast, Jefferson believed its benefits must be progressively redefined. “No society can make a perpetual constitution, or even a perpetual law,” insisted Jefferson. That is, the Founders’ didn’t intend to fashion a document to which they had the last word that monopolized what the Constitution originally meant. Its application is framed by on-going dialog with emerging trends and changing values.

Holding on to original intent, Judge Gorsuch will be the most conservative jurist on the Supreme Court, many pundits predict. He will shy from legislation that supports women’s reproductive rights and gay rights. That’s because the Constitutional Convention’s delegates denied women the right to vote or hold property. They judged same-sex relationships as sodomy. Confined to the text, originalists such a Gorsuch can’t keep up with shifts in societal values.

Brought up a traditional Roman Catholic in a household where his mother as a legislator vehemently opposed abortion, Gorsuch will return to the original context of the Constitution when the only abortion the Framers knew was a miscarriage.

Getting a conservative jurist like Gorsuch on the Supreme Court is the reason why 81 percent of Evangelical Christians and most Roman Catholics voted for candidate Trump. James Carville quipped during the 1992 campaign when Bill Clinton won-over voters opposed a slow fiscal-turnaround, “It’s the economy, stupid!” For many Evangelicals and Roman Catholics, it was the Supreme Court.

Some Christians who read the Sermon on the Mount make the same mistake regarding Jesus’ teaching that Gorsuch does by subscribing to a doctrine of the Constitution’s original intent. Believers mistakenly see Jesus as a second law-giver, like Moses.

Jesus opposed scriptural originalist in the Religious Establishment who treated Mosaic laws as unbreakable, stagnant and untouched by changing conditions. These laws forbade eating certain foods. The Mosaic originalists also outlawed doing work on the Sabbath.

Jesus revised these stern injunctions. He told religious authorities he “fulfilled” Mosaic Law but did not obey it word-for-word as delivered centuries before at Mount Sinai. In the Sermon on the Mount (Matthew 5-7) Jesus’ teaching resembles a compass that offers directions for living rather than a surveyor’s map that freezes ethical details for all times. His teaching points Christians towards how to live as God intended rather than be dictated to by a code resistant to cultural change.

Our nation’s legal rights for all people are preserved when Supreme Court jurists honor the Constitution’s historical context and apply its fluid, not fixed, principles to changing times.

The Rev. Dr. Jack R. Van Ens is a Presbyterian minister who heads the nonprofit, tax exempt Creative Growth Ministries (www.thelivinghistory.com), which enhances Christian worship through dynamic storytelling and dramatic presentations aimed to make God’s history come alive.


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