The Constitution is not dead because we, as its interpreters, are not. With the passing of Supreme Court Judge Antonin Scalia and talk of his replacement, there has also been conversation about the nature of the US Constitution. It was Judge Scalia’s closely held belief that the Constitution was, what he called, a “dead document.” And while I am not an expert on the law, I do know what a dead document is and our Constitution is not.
As we all know, the Constitution is the supreme law of the United States and came into being in 1789. It contains seven articles and 27 amendments, for a total of 4,400 words. But to many this text is sacred. Proponents of a dead Constitution believe that it is possible to know the original intentions of the Founders. This is ludicrous on its face. We cannot even put ourselves in the shoes of a contemporary of another race, let alone the shoes of men who lived over two hundred years ago. I can’t even put myself in the shoes of my daughter who grew up taking for granted the ready availability of email and cell phones. Her shoes just do not fit me, just as the shoes of the Founders don’t necessarily fit us either. We breathe in the air of a different culture, a different Zeitgeist.
Then there are arguments of post-modernity. And all I will say here is if someone actually said that we can know original intent in the halls of universities, that person would be laughed at and locked out of ever getting tenure.
So why does this notion of a dead document still have currency? Here are two reasons.
- In order to make an argument one way or the other about original intent means that you have some idea of the philosophy behind it. With the decline of a liberal arts education, few students have even heard of philosophy, let alone post-modernity. And that means fewer philosophy classes and professors, despite what some political candidates seem to believe.
- Have you ever had a conversation with a philosopher? Many philosophers cannot express themselves in laymen’s language or at least make little attempt or perhaps have little opportunity to do so. So they don’t or can’t make their case widely known.
Why this matters. A democracy depends on an education electorate. If we are ever to have an intelligent debate about the Constitution, the appointment of judges, the state of education, or even who our country needs as our next president, we have to be informed citizens. We have to be able to sift fact from fiction and hyperbole from understatement. Because not all ideas, even if they come from smart people, are defensible.