Debating the Constitution tends to be a fraught endeavor. There’s something about that hallowed document–it can make us by turns furious and ecstatic, it can excite our intellectual curiosity, but regardless, it’s rare that a conversation about the Constitution doesn’t touch something deep within us as Americans. From guns and religion to politics and the police, the Constitution has it all. Constantly invoked and inevitably ignored, it remains the touchstone of our government.
But what is the Constitution, really? What is its significance to you and me?
While I certainly cannot answer those questions, I have been inspired by our “Star Spangled Weekend” here in Baltimore, wherein we celebrated the 200th anniversary of the siege of Fort McHenry that gave birth to our national anthem, to offer a few ruminations concerning the Constitution. So, in the spirit of finding common ground (and with full knowledge that I am in no way competent to provide binding advice about any of this), what follows is a quick little essay about some hopefully helpful parameters for debating the Constitution.
The Constitution, at its most abstract, simply describes what government is—its fundamental and interlocking nature, its powers, its limitations, its ability to alter itself. Viewed from this perspective, the Constitution is a blueprint: the linguistic skeleton of our polity. It describes the three branches of government; it delineates those officials who have to be elected, and those who must be appointed by the President; it grants the branches certain powers and provides checks on those powers in other branches, and much more. In sum, it lays the groundwork for the mechanisms of government.
This Constitution-as-blueprint conception isn’t often fought over; nobody denies that we have three branches of government, or that Senators are elected for six-year terms, though both ideas are enshrined in the Constitution. But there is another aspect to the Constitution that’s much more volatile: the idea of the Constitution as a guarantor of rights and the source of federal power. In this territory we encounter concepts like those found in the Bill of Rights, provisions (like, say, the Commerce Clause) that delineate the realms in which Congress may act, and other daunting notions like Separation of Powers.
These ideas are what get us into trouble. There’s a tendency among debaters to wield constitutional principles like cudgels, as if they are iron-clad and definitive: “The Second Amendment says we can ‘bear arms,’ so I’m going to carry a gun, and that’s that,” to name one iteration of this principle run amok. This is a bad way to conduct our constitutional business, for several reasons, but let’s start with three: First, the Framers intended for the Constitution to govern our country as it grew and evolved with time, so there is some inherent ambiguity here which should lead us to approach these issues with humility; second, it’s impossible to know with complete certainty what the Framers intended each clause to mean (did Adams have the same idea of what the Second Amendment meant as Franklin? What about Madison, Jefferson, and Hamilton? Be wary of those who assert this “strict originalist” view); and third, as a basic matter of language, words have multiple meanings, and furthermore, those meanings have changed over time.
Take the First Amendment, which guarantees, among other rights, the right to freedom of speech. Read literally, one could imagine free speech as a breathtakingly broad concept, suggesting the unfettered right to say whatever one wants, wherever and whenever one wants to say it. On the other hand, free speech could be interpreted in the context of common law principles of libel and slander to mean a much more restrained form of liberty—a freedom of speech that precludes, for example, malicious and untrue speech publicized against others. (Haven’t we all heard that free speech does not include the right to shout “fire” in a crowded theater?)
Or take the Second Amendment’s right to bear arms. If I have the right to carry weapons around, full stop, which is what “right to bear arms” alone suggests, then an assault weapons ban effortlessly morphs into an egregious instance of the government “trampling on your Second Amendment rights.” And why the heck shouldn’t I be able to march through a school with a katana, with the Constitution backing me up?
And so on. These examples are extreme, but they prove the point. And if you’re at all familiar with the debates surrounding these issues, and others that constantly rage (if you’re even passingly familiar with American politics, generally, you fall into this category), then you’re no doubt well-acquainted with this Constitution-as-trump-card style of argument.
But it shouldn’t work that way. Because the Constitution, as a document made up of general principles, is susceptible to multiple differing interpretations in any given circumstance. (This is also, by the way, why lawyers have jobs, and why they spend three years in law school attempting to understand the Constitution.) To put it another way, the Constitution doesn’t explicitly “mean” or “say” anything. Almost everything within it must be interpreted.
Let’s take another look at that Second Amendment. Here’s what it says:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Notice that the actual “right to bear arms” language is preceded by a distinct idea—“a well-regulated Militia, being necessary to the security of a free State . . . .” But what does that mean? Many people interpret—and, indeed, the majority of current Supreme Court Justices have interpreted—it to mean something like the following: Traditionally, Americans have owned weapons. Our Founders thought it was generally for the good of the country to have an armed populace. Thus, the Second Amendment grants individuals a fundamental right to own a gun for traditional lawful purposes, such as self-defense.
That’s one way to read the text, sure. But it’s not the only way. In the same Supreme Court opinion that espoused the above interpretation of the Second Amendment, District of Columbia v. Heller (the majority opinion was written by Justice Scalia), Justice Stevens, dissenting from the majority’s view, veered wildly in another direction. As Stevens saw it, that first clause, about the well-regulated militia being necessary to the security of a free state, meant that the right to bear arms was not an individual, but a collective right, a right that existed only in relation to the importance of maintaining a “well-regulated militia” among non-military citizens. What the amendment did not do, Stevens insisted, was codify an individual right to bear arms free of government intrusion. (What Stevens’ interpretation would mean from a practical standpoint is anyone’s guess, but recall that when the Second Amendment was drafted, the United States had just won its freedom from the UK largely on the strength of informal militias, some more well-regulated than others. So the idea of militias was not as far-fetched as it may now seem.)
The Heller opinion generated great controversy, with many people rushing to declare the majority correct or incorrect based mostly on their predetermined notions of what the answer should be. Few recognized that the debate, as a question of the meaning of the text of the Second Amendment itself, couldn’t be answered conclusively (i.e., as in some kind of mathematical equation) one way or the other. After all, Heller didn’t stop lawyers from arguing about the meaning of the Second Amendment, or from attacking its conclusions in court.* As a lawyer myself, I’m obligated to follow the Supreme Court’s precedents, but only insofar as my situation perfectly mirrors the situation presented in Heller. No law professor would tell me that I’m fundamentally in error when I disagree with the Heller majority’s legal conclusions.
* Indeed, the immediate result of Heller was a storm of litigation in jurisdictions where the courts had interpreted the Second Amendment as a much weaker grant of the individual right to bear arms. As conservative judge Richard Posner noted at the time, “The only certain effect of the Heller decision . . . will be to increase litigation over gun ownership.”
Consider also the fact that up until Heller, the Supreme Court had expressly refused to interpret the Second Amendment to mean what the Heller majority said it meant. In a 1939 case, United States v. Miller, the court had refused to strike down a law banning sawed-off shotguns on the grounds that possession of these weapons could not be construed as necessary for the “preservation or efficiency of a well regulated militia.” (There’s that pesky language again.) Nothing in the Miller decision upheld the fundamental right of individuals to possess firearms–far from it. The court wrote:
With obvious purpose to assure the continuation and render possible the effectiveness of such forces [militias], the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
Today, debates surrounding gun rights and gun control rage on. The Second Amendment is alternatively championed and disparaged. What’s odd is that, with a slightly different makeup of the Supreme Court, Heller might have come out as Stevens preferred—with the individual right to bear arms much diminished. Would that mean that, in some essential sense, the Second Amendment conclusively meant was Stevens said it meant? Absolutely not. It would only mean that, due to a variety of circumstances, another opinion would have won the day, probably temporarily.
To take a second example, consider the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Part of that is pretty clear. To obtain a warrant, government officials need to describe the place to be searched, and the persons or things to be seized. OK, but what about the rest? What is meant by the qualifier “unreasonable”? What constitutes a “search and seizure”? When a police officer asks me to empty my pockets on the street, is that a search? Is it reasonable for the government to ask phone companies to turn over phone records without a warrant? What would the Founding Fathers have thought about searching cell phones? Should we even care what they thought, given the changes in our country and society since their time? The point should be obvious: It’s incredibly difficult to apply these words–especially those that today seem outdated–to our world today.
One last example, and then I’m done, I promise. It’s a common trope, especially among libertarians and conservatives, to claim that government is too big, and the Constitution, as a mechanism for restraining government influence, is woefully disregarded. This is of course true, in part—the Bill of Rights, for example, lists a series of restrictions on government intrusion into citizens’ private lives, and in many cases the government (and the states) have exceeded their purview. In other areas the government has grown far beyond what is efficient or appropriate.
But what people miss is that the Constitution, in addition to placing restrictions on government, spends a great deal of time allocating power to it. It enables the government to regulate interstate commerce–an incredibly vast arena which expands seemingly every year. There is a specific provision holding that federal law trumps state law, in the event of conflict between the two. It codifies the federal income tax, for goodness sake. And in many other ways the Constitution enables Congress, the courts, and the Executive Branch to expand their reach beyond what many deem politically feasible.
And all of that is fine, but it’s also beside the point. Because the problem with claiming that if we just followed the Constitution then the government would recede into its proper role—indeed, the problem with all rhetoric that tries to reduce elegant, vast Constitutional principles to keywords and catchphrases—is that, without the proper context, it obscures, rather than illuminates, what the Constitution really means. Like the Bible, the Constitution is pliable; it contains multitudes. And like the Bible, an appeal to the Constitution without reasons and justifications—a bald declaration that such-and-such regulation violates one of the Constitution’s Articles or Amendments—will never, in and of itself, answer questions about when and how and why the principle applies. For that, you have to look deeper.