Acquired on 9/29/15 from: OC Register Website
Chemerinsky on Constitution OC Reg 2015-09-24 1
CELEBRATE CONSTITUTION’S LEGACY OF
INTERPRETATION
Original document would be largely irrelevant today.
ERWIN CHEMERINSKY
STAFF COLUMNIST
National Constitution Day was Sept. 17, but I fear that the commemoration too
often celebrates the wrong things. The Constitutional Convention in Philadelphia
finished its work, and the drafters signed the document on Sept. 17, 1787. In 2004,
Congress adopted a law that requires every school receiving federal funds to have
an appropriate observation to commemorate this anniversary.
As someone who specializes in U.S. constitutional law, I obviously welcome any
effort to have students be better informed about the Constitution. My concern, though, is that Constitution
Day tends to focus on the document itself, what it says and how it came to be. But what makes the
Constitution special is not the words on the parchment. What should be celebrated is how the
Constitution has been used for over two centuries to create a workable government and to protect
freedom.
A close reading should make us uncomfortable with aspects of the Constitution. The text institutionalizes
slavery in allocating representation in the House of Representatives by counting three-fifths of the slave
population, in preventing Congress from banning the importation of additional slaves for 21 years, and in
requiring that slaves be returned if they escape to a nonslavery state.
Some of the Constitution’s provisions are irrelevant to our modern world, such as the Third Amendment,
which prevents the government from quartering soldiers in people’s homes.
What is often forgotten in celebrating the document is that it has worked so well because it is a living
document that has evolved through interpretation. In some of the most famous words ever written by the
Supreme Court, Chief Justice John Marshall declared in McCulloch v. Maryland in 1819, we must “never
forget that it is a constitution we are expounding. ... [A] constitution intended to endure for ages to come
and, consequently, to be adapted to the various crises of human affairs.” This is a clear expression of the
need for a living Constitution, one whose meaning improves by interpretation as well as by the very
difficult process of amendment.
This should not be controversial. The only way that the nation can be governed today by a document
written in 1787 for an agrarian slave society is for its intentionally broad, open-textured language to be
given contemporary meanings. There is no clear “original understanding” of any constitutional provision,
and even if such could be identified, it should not be controlling today.
The same Congress that ratified the 14th Amendment in 1868 also voted to segregate the District of
Columbia public schools. But that does not mean that Brown v. Board of Education was wrongly decided
in 1954. Article II of the Constitution refers to the president and vice president as “he.” Of course, that
does not mean that it is unconstitutional to elect a woman to these offices.
This basic idea that the Constitution is a living document would be unremarkable except that Justice
Antonin Scalia and other conservatives have argued for decades that the meaning of the Constitution is
limited to its original understanding. This philosophy – “originalism” – says that a constitutional provision
means the same thing today as when it was adopted and can be changed only by constitutional
amendment.
Acquired on 9/29/15 from: OC Register Website
Chemerinsky on Constitution OC Reg 2015-09-24 2
Never has a majority of the court embraced this restrictive approach. One of the most important