Goodwin Liu is about to become the youngest member of California's 9th Circuit Court of Appeals. That court is known to be one of the most liberal in the country, and, based on my reading of Liu's book, he'll fit right in.
Liu's book is a both a criticism of originalism--the largely conservative idea that the Constitution's text should be strictly interpreted using meanings that applied when it was originally signed--and an affirmation of the "living, breathing document" approach that gives new meaning to it as the years roll on.
The
Constitution endures because its meaning and application have been shaped by an
ongoing process of interpretation. That process includes both judicial
interpretation and transformations in constitutional understanding pressed by
political leaders and ordinary citizens throughout our
history.
Considering that the Constitution is the foundation of our government and the fountainhead from which all other laws spring, it's a little unsettling that Liu thinks that it should shift drastically every decade or two, based on whims from politicians. After all, that's what a foundation is--it's a solid base to build on and its sole purpose is not to move. Isn't that how Liu interprets that word?
Of course not. Liu and other loose constructionists are less concerned with what a word means than with what they want to accomplish with it. You see, the Constitution was a flawed document written by less evolved men over two hundred years ago. They made all sorts of mistakes in this historical relic, and because it doesn't cover Bluetooth and Internet pornography we can't really rely on it anymore. But we can't SAY that...could you imagine what the peons would say? They didn't go to Stanford and Yale, they wouldn't understand! So we come up with long, boring rulings with exotic words such as "insofar" that basically say that we make things up so we can clean up after the Founders.
And,
of course, the express legalization of slavery could not be reconciled with the
ideal of a democratic nation dedicated to freedom and equality.
One of Liu's defenses of a loose interpretation of the Constitution is that it's the pragmatic thing to do to keep it from being irrelevant in a 21st Century society. Nevermind that it has a whole Amendment process that could keep it updated, let's take his argument at face value. The Founders also made a pragmatic decision to not ban slavery right at the outset of the country. They had just completed a war, and the country had strongly divided northern and southern interests. For the sake of instituting the Constitution, perhaps the greatest document ever written, they agreed not ban slavery for twenty years. They didn't say that we should have slavery, as is often interpreted, they merely allowed it to exist until 1808. Tensions were so high that in 80 years the country would be in a civil war over the same issue--it simply wasn't feasible to ban it right away. And yet that's always the argument that is trotted out to criticize it.
I find Liu's point that the Constitution is outdated puzzling in one other regard. Ultimately, it's a contract. Can contracts really go out of style? If I have a 30-year mortgage fixed at five percent, does Liu think the bank can reinterpret our contract 20 years from now and say, "well, the dollar isn't worth as much as it used to be, so we think you should pay 10 percent interest?"
I don't think he would go along with that. Neither should he go along with the idea of changing the terms of government that has served us well for so long.
Eric Ingemunson's commentary has been featured on Hannity, CNN, NBC, Inside Edition, and KFI's The John and Ken Show.
Eric was born and raised in Ventura County and currently resides in Moorpark. He earned a master's degree in Public Policy and Administration from California Lutheran University. As a conservative, Eric supports smaller government, less taxation, more individual freedom, the rule of law, and a strict adherence to the Constitution.
Eric,
What flaws do you see in the original constitution? Where do you stand on Lawrence V Texas and on Texas V Johnson?
Hey Brian, good questions. The biggest oversight in the Constitution was the failure to provide for judicial review. The framers also failed to see how that awarding the vice-presidency to the presidential runner up would lead to consternation.
I had strong feelings about Lawrence v. Texas and Texas v. Johnson when I first read about them in college. As much as I deplore the thought of someone burning the flag, it shouldn't be an illegal act. It's a free country. Same goes for sodomy laws--I don't want the government telling anyone what to do in the bedroom. The laws that were struck down in both of those cases infringed on individual liberties.
However, we are making a big assumption that the practice of "incorporation"--holding states up to provisions in the federal Constitution--is legally sound. I think that the SCOTUS has misinterpreted the due process clause of the 14th Amendment to mean that it can apply to the states. Originally, the Constitution only applied to the federal government and states didn't have to abide by the Bill of Rights--they were expected to have their own. In all likelihood, the states would have guaranteed even more liberties than the Bill of Rights provided for.
Eric,
You didn't mention the issue of slavery. I am a big fan of the 14th Amendment. I don't agree with you that all states, including many in the South, would protect the rights of their citizens more than the federal government. Before the SCOTUS ruling in 2003 Texas was prosecuting people for consensual relationships in their own homes.
Brian, you asked what flaws were in the Constitution, and slavery isn't permitted in that document--rather it opened the door for the first time for slavery to be banned. I hardly think of that as a flaw.
The reason the Founders couldn't ban it from the outset is that they never would have got the Constitution ratified, and there would be no United States today, and the slaves would never have been freed. So while I wish circumstances could have allowed slavery to be banned upon signing the Constitution, we have to be cognizant that just simply wasn't an option.
I like the 14th Amendment, too, but I think it's misinterpreted. If we are going to have a country with the Rule of Law, we mustn't let what we *want* affect our reading of how the law *is* (and that last part is my overriding concern and why I am beating this to death).
I agree with you that not all states would protect people as much as the federal government from the outset. But let's say that State A maximizes protections and neighboring State B minimizes them. Population would flow from State B to State A, because State A would be a better place to live and raise children, or the people in State B would rise up and toss out their legislators (this is the reason the Constitution guarantees every state a Republican form of government), correct? The legislators in State B would then be forced out of office by the outraged citizenry, fueled either by a declining economy or a demand for more rights.
Using the Texas example you cited (and I don't think very many people were arrested under this law in recent decades), if people were worried about getting arrested for an unfair law, they could rally the people and persuade their fellow citizens to vote their way and get the law changed, and I would have joined them.
That's why we have elections.