The Constitution Is Just Words, Until We Give Them Meaning

Dom Apollon Jan 8, 2011

Republican House Majority Leader John Boehner salutes during his swearing in ceremony Wednesday. PHOTO: Getty Images/Chip Somodevilla The new Republican leadership of the House of Representatives, in a tea party-inspired publicity stunt, kicked off the 112th Congress yesterday by inviting members of both political parties to read the entire text of the Constitution aloud for what appears to be the first time in the chamber’s history. Ascendant conservatives hoped to paint their movement as the legitimate, deferential protector of our founding document. But students of (non-redacted) civil rights history and of Constitutional law know that only the ignorant or arrogant believe the Constitution ever had, or ever will have a single, fixed meaning. And the motivation for asserting it does has less to do with guiding lawmakers than with freezing the distribution of privilege where it stood in 1787.In order to win approval of the three quarters of states required for its ratification, the Constitution was a product of compromise that, at times, used vague or imprecise language—take, for instance, Congress’ power to “make all Laws which shall be necessary and proper” to execute its long list of duties. That vague language has given subsequent generations flexibility to act in what they see as the national interest. And the document’s 27 amendments have more often than not recreated the same problem, or virtue, of broadness. Read the Fourth Amendment’s prohibition against “unreasonable” searches and seizures, and ask yourself if you and your local policeman share the same definition of unreasonable.

Here’s the thing: The Constitution didn’t come with an instruction manual, and it contains no provision declaring we have to forever interpret its language according to what “the Founders” thought. It’s not even possible to identify one sole interpretation unifying that group of white men. Debates during the Constitutional Convention were not harmonious. Members chafed against provisions like the three-fifths compromise that counted black bodies in fractions—a provision that was excluded from yesterday’s reading, much to the deserved chagrin of some African-American legislators. Three conveners flat out refused to sign the final product that would be submitted to the state ratifying conventions.

The states nonetheless had to vote yes or no for the document as a whole. Differences of opinion could be worked out later, but the vast majority of the country understood that we needed a stronger federal government and less of the financial chaos and instability that resulted from making each individual state so powerful. This is in large part why the document established a national Supreme Court—to settle disputes of Constitutional law (just after the war for independence, there was no federal court system, and the national legislature had few, limited powers; the Constitution sought to remedy both those flaws). The document’s purpose is precisely to guide us in balancing our differences of opinion.

But in the battle to define what it means to be an American, it doesn’t get any more powerful symbolically than to claim that your interpretation of the Constitution is singularly correct, in synch with its original intent. And fundamentally, that’s our nation’s most animating political and cultural fight today—the perpetual re-defining of what it means to be an American. That has always been and will always be a threatening process for those who already hold all the power and resources in this country; it necessarily means redistributing privilege. So we see conservatives advocating a re-interpretation of the rather clear language of the Fourteenth Amendment’s birth citizenship provision. They are terrified by how brown America has become, and want to preserve the “real” America that Sarah Palin knows and loves—exclusive and largely white.

If we follow the arc of our nation’s history from where it began, it bends toward more inclusion and justice. But since President Obama entered the White House (and the current financial crisis left everybody feeling pressed), the tea party rank-and-file has stated its aims quite clearly: We want our country back. The question for the rest of us is similarly clear: Are we going to let them have it?

This business of forming a more perfect union is painfully gradual. It’s one in which “we the people” must continually engage, and human rights advocates throughout our history have known all too well that justice is never guaranteed. Even when judicial victories or Constitutional amendments are won, the victory means only that the struggle for implementing and protecting them has begun.

The Fourteenth Amendment’s clause guaranteeing “any person” within a state’s jurisdiction the “equal protection of the laws” was passed in the 1860s. But a conservative interpretation of it by the Supreme Court in the infamous Plessy v. Ferguson case left racist Jim Crow policies throughout the South unchecked. It took decades of legal struggle by the NAACP to gradually chip away at legal segregation. Even after the Brown v. Board victory, it required the blood, sweat, and tears of civil rights activists and everyday people to win any semblance of federal enforcement of the law. Segregationists stalled for as long as possible in a vain attempt to convince the rest of the nation that desegregation would be unenforceable in the same way alcohol prohibition had proved to be decades earlier. With less resolve on the part of the civil rights movement, maybe the segregationists would have won that argument.

In his final opinion before retirement, Justice Thurgood Marshall left the Supreme Court with one last dissent in a case that allowed victim-impact statements at the sentencing phase of death penalty cases. The Court had just ruled such statements in violation of the Eight Amendment four years earlier, given concerns about arbitrary and racially discriminatory decisions of juries. But the appointment of two George H.W. Bush nominees had changed the Court’s balance of power, and voila, the meaning of the Eighth Amendment changed as well. “Power, not reason, is the new currency of this Court’s decision making,” Marshall wrote in response.

The lesson of history is that the words in the Constitution are nothing more than that; we must always continue to articulate and advocate for inclusive and just interpretations of them. And after we’ve advocated for justice and inclusion, the struggle continues for the just implementation of our interpretations. The Constitution was born a living document through the arguments and compromises at the Constitutional Convention, and those arguments and compromises will continue as long as it governs our nation. No amount of self-righteous grandstanding can rewrite that history.

This article was originally published on ColorLines.

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