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Allan Powell: What gives the U.S. Constitution its legitimacy?

June 13, 2013|By ALLAN POWELL

From time to time, I receive an article or book from a reader who was impressed enough with the contents to share it with me. One such gift was a Jan. 17, 2011, issue of The New Yorker, with a request to read “The Cult of the Constitution” authored by “Critic at Large,” Jill Lepere. The writer was primarily concerned in finding how knowledgeable Americans were with respect to our basic political document — the Constitution.

I was not aware that so many organizations were supplying free copies of the Constitution to the general population and also providing educational programs. We might be wise to find out the motivation behind such efforts which might not be educational, but self-serving. While there is a desire for an informed public, there must be a concern about the promotion of ideology. 

Since this document was written in the language and context of the eighteenth century and contains radically new ideas, there is a need for defining and interpreting the document with clarity and accuracy. Such a setting gives much room for a variety of opinion about what the writers meant to say. 

We are not confused, for example, about the meaning of Article III Section 3 which abolishes punishment resulting from a “Corruption of Blood.” Our Constitution declares, “The Congress shall have Power to declare the Punishment of Treason but no attainder of Treason shall work Corruption of Blood, or Forfeiture, except during the Life of the Person attainted.”

This forbids the punishment of heirs or bloodline for the crime committed by forbearers. Eventually, in 1814, England followed our example. An ancient practice was voided by rejection or amendment.

Why then, is it so difficult to get agreement on a simple portion of the First Amendment? It reads, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof...”

A majority of the Supreme Court has interpreted this to support the principle of the separation of church and state, and many notable persons such as James Madison and Thomas Jefferson have given abundant support to this principle. No matter, there are a fair number who insist that no such principle can be implied or found in the First Amendment.

These doubters may be members of a newly formed aggregate known as “originalists,” and this is another topic of interest. “Originalism” is an argument that the only true and valid approach to the interpretation of the Constitution is that which reflects the mind of the original drafters at the 1787 Convention in Philadelphia.

Former Attorney General, Edwin Meese, Justice Antonin Scalia, and author Robert Bork have supported this point of view. It is highly probable that the members of the expanding tea party would be in agreement. However, numbers and names alone do not give credibility to political thought. In the end, “originalism” must stand or fall on its pragmatic consequences: What would be the result if we put “originalism” to work?

The answer is clear — we would be permanently bound to a set of ideas and values that would cry for amendment in a world of change and would be powerless to make the needed changes. This should have been evident at the very beginning when there was a complaint that the document had no Bill of Rights. Within three years one was added. However brilliant the Founders were, they could not foresee everything. Though tagged as an “assembly of demigods,” they were not omniscient.

Then too, why did they provide such a sophisticated means to amend a document if they imagined it to be perfect? They were surely aware of the fact that the finished document was a patchwork of compromises which made ratification possible. They, like Benjamin Franklin, had reservations about specifics — but signed it because they felt it was probably the best they could agree upon.

“Originalism” applied to constitutional interpretation is flawed in the same way as literalistic fundamentalism is to biblical interpretation: It handcuffs new ways of thinking, ignores the reality of change to cope with change and denies the fact that we human beings can only see a short distance forward.

The “cult” of “originalism,” like the cult of biblical literalism, is in a tug of war with new technology and science which it may not — indeed should not — win. The search for legitimacy requires openness and flexibility, not fixity and stagnation. Legitimacy is intimately joined to workability.

Allan Powell is professor emeritus of philosophy at Hagerstown Community College.

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