Constitution not Subject to Evolution

From time to time, this column – ordinarily dedicated to answering your curiosities about the practice and function of the American legal system – will take time to provide some editorial commentary on current events involving the law. Allow the following departure from our usual format.

Earlier this Fall, Justice Antonin Scalia of the Supreme Court of the United States addressed the annual membership conference of the American Civil Liberties Union (ACLU). In a conversation that included Justice Scalia and Nadine Strossen, the topic of whether the U.S. Constitution was a living (or evolving) document arose. Countering Strossen’s point that the Constitution was, in fact, evolving, Justice Scalia said the following:

“Once you say it evolves and it doesn’t depend on what the people thought they were doing when they adopted it, somebody’s going to have to decide how it evolves. Why in the world would you want nine people from a very uncharacteristic class of society – to wit, lawyers – to decide how the Constitution evolves?”

Commentators much smarter than I have bandied about these arguments with greater eloquence than my fingers can type. In general terms, usually those of a liberal persuasion view the Constitution as a living, breathing document that evolves with our society and culture. In contradistinction, often those of a more conservative persuasion argue that the Constitution has a specific meaning, one that cannot be changed by society’s evolution.

Suppose Ms. Strossen is correct and the Constitution is a living and breathing document, capable of changing meaning as our culture evolves. Which liberties are protected? If the Constitution changes its meanings as society becomes more enlightened, do we ever actually retain any of our “inalienable rights”?

If you hold to Justice Scalia’s point of view, you might be accused of being an originalist or, worse, an absolutist. If the Constitution does not evolve to meet the needs of our developing culture, then did the Founding Fathers contemplate including a bazooka in our Second Amendment right to bear arms?

The debate between the two jurisprudential philosophies reflects, much the more, the debate about truth: is it relative or is it absolute? Taking our cue from Pontius Pilate’s rhetorical question to Jesus, we must also ask, “What is truth?” Does truth change depending upon the circumstances? Upon a culture’s evolution?

Whether it is relativism or originalism I dare say we cannot allow our answer to simply be, “It depends.” If we were to do so, the rights we once thought were inalienable could become rather . . . well . . . alienable.

Our legislature keeps our laws in lock-step with our so-called, “cultural evolution.” But, it is necessary that we maintain a document that is of immovable stock, defining with a modicum of finality that which we as a nation consent to be governed. Left to redefinition by a committee of nine (and lawyers at that!), I suspect our Constitution would go much the way that Justice Scalia predicts: “It would mean whatever they think it ought to mean.”

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.