Peter Skeele (Montana)
Hillsborough High School
Constitutional Convention of 2007
The American Constitution
A Work of Art…Changes?
The Founders authored a masterpiece when they crafted the Constitution of the United
States. The longest lasting constitution ever crafted by anyone, anywhere in the entire history of
the world; its durability is unique. However, the Constitution was not designed to answer every
question concerning government, ethics, and the law. The founders wrote the Constitution to be
an outline of government. The majority of questions brought up by the Constitution are
answered by a great body shared knowledge, ethics, and morality that existed at the time of the
founding which scholars today call natural law. This body of natural law is comprised of a
mixture of “common sense” coupled with the ideals of the Judeo-Christian heritage. George
Washington declared the foundation of America’s successful existence in his Farewell Address,
Of all the dispositions and habits which lead to political prosperity, religion and
morality are indispensable supports. In vain would that man claim the tribute of
patriotism who should labor to subvert these great pillars of human happiness.
John Adams similarly proclaimed,
We have no government armed with power capable of contending with human
passions unbridled by morality and religion….Our Constitution was made only
for a moral and religious people. It is wholly inadequate to the government of any
other.
There is a litany of founding fathers who believed the same thing regarding the importance of the
pre-existing common standard of morals that all people could draw on. Even those currently
labeled as devoid of religion, albeit inaccurately, throw in their hat with Washington and Adams.
Samuel Adams wrote,
Religion and good morals are the only solid foundations of public liberty and
happiness. Neither the wisest constitution nor the wisest laws will secure the
liberty and happiness of a people whose manners are universally corrupt. A
general dissolution of the principles and manners will more surely overthrow the
liberties of America than the whole force of the common enemy. While the
people are virtuous, they cannot be subdued; but when once they lose their virtue,
they will be ready to surrender their liberties to the first external or internal
invader.
Benjamin Franklin said, “Only a virtuous people are capable of freedom. As nations become
corrupt and vicious, they have more need of masters.” These words may be surprising coming
from Franklin, one of the most liberal of the founders. But even Jefferson was of the same mind.
He wrote,
“The practice of morality being necessary for the well-being of society, He (God)
has taken care to impress its precepts so indelibly on our hearts that they shall not
be effaced by the subtleties of our brain. We all agree in the obligation of the
moral precepts of Jesus and nowhere will they be found delivered in greater purity
than in His discourses.”
That is, Jefferson acknowledged a desire of man to twist or forget various aspects of the natural
law so his solution was that “we all” recognize the important of and look to Biblical morals to
discover what law should be. Summarily, these men were regarded as representing a wide range
of opinion yet they all agree that the system of American government relies on more than the
Constitution alone. They all very clearly reference the natural law made accessible through the
Judeo-Christian worldview.
Knowing the background of what the Founders thought is important for a variety of
reasons. First, they define the role of the Constitution as a legal document and acknowledge that
it is limited. Second, they instruct how to interpret and apply the Constitution. These two
fundamental truths affect every issue pertaining to the potential revision or updating of the
document. One issue that questions the “problem” of information left out of the Constitution is
presidential prerogative. Unlike most popular ethical issues which can draw an answer from
natural law and the Judeo-Christian worldview, this question is one of procedure. The best way
to approach this topic is to accept the judgment of the executive. To specifically limit what he
may do will hamstring his ability to lead the country in times of crisis. If there are times when a
president abuses his power, which critics are afraid of, the right solution is to impeach that
president. Going about changing the Constitution in response to the actions of one individual is
winsome, capricious, and ill-devised. It would be much better to use the methods of the law
already available than to create new ones that would hamper the system currently in place.
When trying to understand the Constitution, it is vital that one maintain a dedication to
original intent. Considering that the Founders put so much weight on morality outside of the
Constitution, it is clear that in order to understand what the Constitution is supposed to mean,
one must understand not only the language of the law but the context in which that law was
written. Some would say there is no use in maintaining any type of commitment to what the
founders thought because their ideas are outdated. But the reason why the Constitution has
lasted so long is due to its success in creating a fair government. This success is due in turn to
the thorough thinking the founders put into the creation of the document itself by using the
foundation of natural law – a standard to which they were all dedicated. If one wants to scrap
this foundation, so be it. But it would be better to make a clean break, deny the value of the
Constitution and just make a new one based on a different set of morals rather than attempt to
mix distinct, different, and conflicting codes of ethics.
It is also true the Supreme Court has become not only the arbiter of localized conflicts but
has taken to interpreting the Constitution however it wants and essentially rewriting those
interpretations into law. However, the court does not need to function this way. Although it may
be legitimate for the court to serve as the arbiter of the law, there are two distinctly different
ways it may apply its power. One method emphasizes a dedication to the original intent of the
Constitution and a commitment to understanding what the founders meant to write when they
wrote it. On the other side is the understanding of the constitution as a living document, one
which adapts to the changing times, circumstances, and political crises of the day. At first brush,
the latter seems much more desirable. This rhetoric supporting a living constitution seems to
keep the document much more in touch w/ reality than some interpretation that expresses zealous
devotion for dead white guys that have been dead for 200 years. However, such an
understanding of the two philosophies is a complete mis-portrayal of both.
In reality, both interpretations accommodate for an evolving society. In fact, by a strict
constructionist view, Article V (the amending process) requires the Constitution to be a changing
document. The difference then is not whether the document should evolve, but how it should
change and who should be responsible for changing it. Under the living document approach,
history and precedent have little or no weight. Changes are made by unelected, isolated, and
unaccountable judges who make policy changes w/ their own judgment and based on their own
perception of society's needs. Chief Justice Charles Evans Hughes wrote, "We are under a
constitution, but the constitution is what the judges say it is." Ironically, these modern judicial
policy makers are usually out of touch with the mainstream. In other words, their perception of
what society's needs are is much different from reality. For example, although 80 % of the
nation opposes flag burning, living document judges have ruled that it is ok. Similarly, although
90 % of Americans in the Federal 9th Circuit support the words "under God" in the Pledge of
Allegiance, one living document federal judge was able to overrule their collective opinion with
his own case opinion. Equally striking is the proliferation of recent occasions in which judges
struck down votes made by the people in which they clearly expressed their will. In both New
York and Washington, judges struck down referenda that banned physician-assisted suicide. In
Arkansas and Washington, judges struck down state-wide votes establishing term limits
(interesting, under the living document philosophy, a judge can prolong his own term in office
and flaunt the people's will.) Last, in Missouri, a judge struck down a vote against a tax increase.
Some living document proponents will cry that they are merely guardians against the
tyranny of the majority of American democracy. However, George Washington explained that
"The fundamental principle of our Constitution enjoins that the will of the majority shall
prevail." Thomas Jefferson also explained that "The will of the majority [is] the natural law of
every society [and] is the only sure guardian of the rights of man. Perhaps even this may
sometimes err. But its errors are honest, solitary and short-lived." This is not to say that minority
may be stomped on, but it is to say that the minority's position can never overrule the majority,
or circumvent the will of public opinion, or circumvent democracy itself, as living document
justices desire.
On the other hand, the originalist interpretation underscores the will of the people in
making policy decisions and the record of their opinion codified in the Constitution and laws of
this nation and authorizes judges to uphold and protect that law that the people have made for
themselves. When criticized that originalism or strict constructionism is too limiting, Justice
Antonin Scalia countered, "Don't think the originalist interpretation constrains you. To the
contrary, my [originalist] Constitution is a very flexible Constitution. You want a right to
abortion? Create it the way all rights are created in a democracy: pass a law. The death penalty?
Pass a law. That's flexibility."
In summary, the living document approach calls for unaccountable judges to rewrite the
law on their own, oft times w/ little chance of recourse. The originalist approach calls for judges
to merely interpret and protect the intent of the law they are given and leave legislating to the
legislative branch and ultimately, the people. If the issue ever arises about the powers of the
court, acceptable judicial philosophy, or social issues which have not been brought to bear by
popular legislation but by activist judicial benches, it is crucial that one understand the real
differences between originalism and unbridled interpretism.
The Constitution has proven to be a strong catalyst for liberty order and protector or
order. It has organized American government well by laying out regulations but shying away
from time-sensitive issues that could politicize the document if overly amended. It also
accommodates for the various branches of government to do as they will as long as their actions
are in the limits of their appropriate jurisdiction. This allows for flexibility but maintains checks
on the power of each branch of government. While some issues such as marriage should be
newly addressed in the Constitution to meet changing needs in the law, the Constitution deserves
to remain largely unchanged.