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Conservatives vs. the Constitution

Last year my earnest freshman self published an article with the inflammatory title of “Liberals vs. the Constitution.” This article will present a more moderate argument, yet I couldn’t resist the opportunity to become an equal opportunity exasperator with another inflammatory title.

My previous piece endorsed originalism, the doctrine that constitutional law should be based solely on the original meaning or understanding of the Constitution, including its amendments. For this I received flak from Sam Barr at the Harvard Political Review, who argued, “the Constitution enshrines principles and goals, not only means.” Barr suggested, for example, that though the Constitution only specifically authorizes establishing “Post Offices and Post Roads,” airmail is constitutional because the clause was actually meant to provide for mail delivery in general.

Quite right. Besides specific provisions such as those designating the minimum age for running for Congress, the Constitution embodies national principles and goals. Furthermore, the substantive meaning of these principles and the best means of achieving these goals change over time. Flogging was once a common method of discipline in America. Now, however, virtually all Americans consider flogging “cruel and unusual punishment,” and even the originalist Antonin Scalia says he would hold flogging unconstitutional out of deference to evolved public opinion, though the “cruel and unusual punishment” clause has never been amended.

The framers intended the federal government to have the power to regulate all matters of a national dimension, so they granted Congress the power to regulate interstate commerce. Prior to the 1930s, “interstate commerce” was generally interpreted as meaning only the movement of goods and services across state lines for sale. Local production and intrastate commerce were considered outside the reach of Congressional regulation, not because of a conviction that Congress should never regulate such activities, but because they had no substantial effect on interstate commerce and thus on the general welfare of the nation in 1787. In today’s interwoven national economy, they do. Thus, a principles-and-goals originalist reading of the Commerce Clause can easily endorse measures such as the Clean Air Act or the 1964 Civil Rights Act. Originalism need not be stuck in 1787.

Unfortunately, this is not the style of originalism practiced by most self-professed adherents today. Most originalists diligently search only for the framers’ intent or the public’s original understanding of Constitutional text in the sense of what they thought or would have thought about specific issues, like the 1964 Civil Rights Act, gay rights, or the Environmental Protection Agency. This, when they should be searching for the goals or principles Americans enshrined in 1787 (like equality, personal autonomy, and a commitment to the general welfare) and what those mean to Americans today as applied to the modern world.


Conservative originalists of this stripe threaten the Constitution’s ability to adapt to a changing nation. While in an ideal world all changes in constitutional interpretation would come through amendments, we now have a long history of changing our constitutional law more by judicial reinterpretation than by amendment. Trying to change that now would destabilize our constitutional law and do more harm than good.

But neither do we need untethered liberal constitutionalism. While we need an evolving Constitution in the sense that its interpretation changes as Americans develop new consensuses on its principles, there is less apparent value in the so-called “Living Constitution” that could better be described as a “Rubber Band Constitution.” Rubber band constitutionalists see our founding document not as an expression of national consensus on fundamental principles, but as a vehicle for imposing, as far as possible, the morality of a minority on the rest of the country. They realize the Constitution can only be stretched so far to fit their agenda, or the rubber band will snap and the Supreme Court will lose its legitimacy and power, but they have no principled qualms about making decisions that clash with the consensus of the people they are ultimately supposed to derive their power from.

Of course, such adherents do not admit as much. Their public arguments sound very much like mine here. The crucial difference, however, is that I believe changes in the interpretation of constitutional principles should only come after the formation of a new broad national consensus, difficult as that point may be to determine. Rubber band constitutionalists believe changes should come whenever moral (in their opinion) and feasible. Though the morality they seek to impose on America may in some cases be more just, as a constitutional doctrine it is an attempt to transform the judiciary into a super-legislature that governs with little consent from the people.

Rubber band constitutionalism takes too much power away from the people. Shoddy originalism leaves us stuck in 1787. Our best choice is principles-and-goals originalism, or what some might call common law constitutionalism, which allows our Constitution to adapt to changing times while assuring that it still remains the unifying document of our sprawling and diverse nation.

Wyatt N. Troia ‘14, a Crimson editorial writer, is an economics concentrator in Winthrop House.


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