Thursday, December 27, 2012

The Cobernicus Theory of the Constituion

One of the inspirations for this blog is a series of conversations I have been having over the past two years with my friend, John White, one of the leaders of the Cheshire Tea Party. He is, as am I, an amateur of the US Constitution, Although our interpretations rarely coincide or even come close, these talks have always remained cordial,  a spirit I hope to maintain here.

I anticipate that many posts will deal with various aspects of the Constitution, so I would like to begin with my general theory of Constitutional interpretation.  I have been greatly influenced by the New Textualism Theory championed by Doug Kendall and others.  For a good lay summary of the approach, I recommend Jeffry Rosen's article in The New Republic.  While these writings have influenced me, I make no claim to represent this legal theory, merely my own view, which includes the following foundations:
  • The drafters of the Constitution (and the Bill of Rights,) but not necessarily all the delegates. were the intellectual giants of their era, on either side of the Atlantic.  They were steeped in the political, moral and religious theories of the day.  They could rightly say, as Humpty Dumpty could not:, "When I use a word, it means just what I want it to mean - neither more nor less."  It is also true that when they left out a word or words from earlier documents, they had a purpose in so doing.
  • While these were truly wise men, the Constitution was not a result of divine inspiration, but rather emerged from heated, and often raucous, debate and negotiation: the large states vs. the small, free vs. slave, etc.  No one looking at the 3/5 Compromise (Article I, Section 2) could believe otherwise.
  • Given the two conditions above,it is important that some wording is very specific (e.g., the ages required for service in Congress or as President), while other were left vague (e.g., "general welfare.")  They should therefore be understood according to their drafting, with general conditions giving leave for broader interpretation.
  • While the Declaration of Independence was designed to overthrow the status quo, the Constitution sought to "create a more perfect Union" and "insure domestic tranquility."  It represents an effort to create a more orderly life than had existed during the Revolution or under the Articles of ConfederationIn a bit more than a decade, our Founders had evolved from revolutionaries to true "small-c" conservatives, rather than the Directoire.  Amazing!
  • Those drafting the Constitution understood it to be a lving document, to be reinterpreted by each succeeding generation.  Jefferson stated that all laws should "expire" in 19 years, when a new generation takes power.
  • Despite their differences, the Founders were able to agree on the larger issues. The key to understanding their intentions is the Preamble.  It does not merely "walk before" the Constitution, it defines where it is going. In just 52 words, it summarizes the future they desired  for our country.  

The Preamble

"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

We the people:  While the Articles of Confederation was, as it name says, an agreement among the States, the Constitution set up "a government of the people, by the people and for the people."  The States were to have a more limited role as defined in this document.

...a more perfect Union:   To my mind, "more" is the most critical word in the Constitution; it implies movement, and specifically progress.  The first goal of the Constitution was, and is, to make our Union "more perfect"... than what?  Obviously, more perfect than a loose Confederation of States that preceded it.  The movement in the Constitution is clearly toward giving greater, defined powers to the Federal government. This new structure was not yet a "perfect Union." a complete fusion into a single entity, but was meant to be a step in that direction.

... establish justice:  Here there is a small echo of the Declaration, noting that the goal of a just society of free men it envisioned, had not yet been achieved.

... ensure domestic tranquility:  The echo above is followed immediately by a call for order.  No more revolutions, please!  This will be critical in understanding the intent of the Second a later post.  Note that domestic peace is placed before international security.

... provide for the common defense:  This is obvious and essential role for the central government, but one that caused concern for some of the Founders, and led to the Second Amendment.

... promote the general welfare:  The meaning of this phrase has been the source of more debate than any other.  In my mind, its ambiguity was deliberate, as the Founders intended that each generation redefine it.

... secure the blessings of liberty:  Again, the gains made by revolution were to be secured by law and government.  We were to have the liberty to act within their constraints, but not the complete freedom of anarchy.

... for ourselves and our descendents: The Constitution was built to last, despite the changing times.  To do so it had to adapt, as Jefferson demanded.  In my mind the Constitution was meant to be a framework on which our nation could grow, rather than a cage to contain the government it established.

Of course, while I agree with the originalists that we should consider what the Founders said in their time, how they said it is as important as what they said.  I await a reply from them.

This is enough too much for a first blog on this subject.  If I didn't chase you away, the discussion will continue, later.


  1. Very insightful, Marty, and a good foundation for future discussion.

  2. This is great. I'm looking forward to future conversations around this. I'm curious to see how New Textualism contrasts with Old Textualism (the Scalia kind).

    I found this debate from 2009 between Justices Breyer and Scalia to be very interesting.

    1. Michael,

      If you want to read something scary, read this article by Scalia, "God's Justice and Ours."

    2. Wow.

      "The mistaken tendency to believe that a democratic government, being nothing more than the composite will of its individual citizens, has no more moral power or authority than they do as individuals has adverse effects..." (emphasis mine)

      Kind of flies in the face of "We the People" no?

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  4. Linda Greenhouse has suggested I read Jack Balkin's "Living Originalism" as the best source on this topic. I intend to do so, and you may wish to as well.