In this two-part series, I plan on discussing the major issues I see with two prevalent types of fundamentalism: constitutional and biblical. Though the two need not be related, it appears to me that one often leads to the other.
This first installment is on a fundamentalist interpretation of the Constitution. I have some expertise here, given that I have my JD and an undergraduate in English, so I will rarely be referring to other sources (outside the Constitution itself). In this discussion, I am defining constitutional fundamentalism as a combination of "originalism" -- look at what the words meant when they were originally written -- and "strict constructionism" -- go strictly by the words on the page, with no reference to anything external, avoiding inferences.
Original intent
Ethical considerations
Before I get into a more textual discussion, first I would like to point out that the founders were extremely flawed, and the document they made was, to modern sensibilities, horrible. The most obvious flaw, of course, is the institutionalization of slavery. Many copies of the document will now completely get rid of the portions discussing slavery, but the fact is that those clauses are still there, and will always be so -- they now just have no effect because later ages decided slavery was no longer acceptable in our society.
The white men in the Constitutional Convention acted in secret, beyond the scope of their authority, and created a document that marginalized women, blacks, Indians, and anyone that could not vote (at the time, adding those who owned no real estate to the list of the marginalized). That does not mean that the Constitution is still an ethical wreck, but it does mean that we should strongly question whether the original intent of the Founders should have strong ethical sway in any other deliberations here.
Whose intent?
When people talk about the original intent ... whose intent are they considering? Is it the intent of those that drafted the Constitution, such as James Madison? Is it the intent of the entire Convention? How about the state legislators that voted on it? Or maybe the people that voted in those state legislators?
This is not a trivial or meaningless undertaking. And, if you can't answer who, how can you answer what? We know, for instance, that these were politicians, and that, once Washington left office, these politicians were at each others' throats until the generation passed them by. There had to be a Great Compromise for allocation of representation. In other words, they disagreed. This fact should not be at all surprising, as these were revolutionaries, willing to take up arms against a lawful king ... so they were probably a wee bit opinionated, huh?
So, when they disagreed ... which intention wins out? The majority? The one most widely reported? The one cited most often in cases? ... Or just the one that you agree with?
Intent at what time?
The way we amend our Constitution is interesting. For most statutes, we actually change the language of the statute when we pass a new law. " ... shall not discriminate based on religion, ethnicity, race, or sex" may become "... shall not discriminate on religion, ethnicity, race, sex, or sexual orientation." We don't do that with the Constitution. All the original words are left the way they were, and we just add new words to the end. The new words take precedence over the old words.
That means that, each time you amend the Constitution, it's a new document that must be reinterpreted based on what the new amendment says. Of course, most of the time, the amendments are aimed at specific things: How you elect a President and Vice President, popular election of Senators, women's suffrage, to drink or not to drink, voting ages, etc. That means that a wholesale revision was probably not the goal (though there might often be unintended consequences).
There is an important exception among the amendments. It occurred immediately after the Civil War, and it is arguably the most important amendment: Amendment 14. The Civil War was fought largely because of slavery (so, see Amendment 13), but it was also about exactly how sovereign each state was, and how each state had to treat its own citizens. Prior to the 14th Amendment, there were almost no limitations on what the states could do. They could have their own state religions, they could freely abridge the right to associate, they could deny you a lawyer, almost anything.
The Civil War changed that. After slavery was ended, the South attempted to keep a sort of de facto slavery going through treatment of black citizens, so Congress responded with the 14th Amendment. All of the sudden, states were much, much less sovereign. Instead of saying what Congress "shall not" do, like in the Bill of Rights, now we get what States cannot do ... and we also get the all-important last clause, which says that Congress can pass laws enforcing these rights. All of the sudden (well, within half a century or a bit more, heh), the Bill of Rights applied to the states.
This was an incredible sea change, and there is no doubt that everyone knew it at the time. We fought a war over who was boss, and the national government won.
So, knowing all of this, knowing that each amendment changes the entire document, and knowing that the intent was now to limit the sovereignty of the states in ways not conceived by the Founders ... whose intent should rule? What sections are changed? What new considerations are part of every interpretation?
See, not so simple.
Strict construction
Switching to strict construction ... this concept shows up all over, frequently in contract law, in particular with what is called the "4 corners" approach to reading a contract. If it is not in between the 4 corners of the document, it doesn't count.
Strict constructionism also shows up in statutory construction, especially if the statute is designed to be exhaustive. Long statutes are trying to think of everything, so it sometimes is argued that judges should assume that legislatures did think of everything.
For most law and most statutes, though, there are large gaps. That's one reason why legislators began putting the purpose of the statute at the beginning, so those reading it (especially judges) would know the way to fill the gaps when questions arose.
The Constitution is a different beast altogether. As the most influential Justice of all time -- Chief Justice John Marshall -- said in McCullough vs. Maryland (1819), "We must never forget that it is a Constitution we are expounding." Congress was given adaptable powers because the Constitution was "... intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs." Id.
How do we know this? Well, some parts of the Constitution leave the door explicitly open, saying that there is more out there, but that "more" is still covered by the Constitution. One important place to find this language is in the 9th Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." In other words, just because we listed a bunch of rights here does not mean that there are not other rights that this Constitution protects. (There are a couple of legal maxims related to how items in a list should be interpreted, and this says ... hey, don't follow those.)
There are several more implicit areas, where the wording of the document was left ambiguous. Of course the brilliant men in the Convention could have been more explicit, but they chose not to be. It was a Constitution they were writing, tracing broad lines that purposely left the details in flux. For example, take a look at the 8th Amendment: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." What is excessive bail? Does anyone think that the Founders thought we would take the amount used in the late 19th Century as our guide now? What is cruel and unusual? If it was not unusual in the 19th Century, should it be okay now? Heck, if we wanted to amend, what if we simply gave the exact same wording? Then could we use our modern definition of unusual?
The much more likely reading is that this is to be left to the people to decide.
Strict construction, then, often makes little sense when reading the Constitution because the words we so often care about do not lend themselves to a "4 corners" approach. You simply cannot look into the text to find out what is cruel and unusual. You cannot find excessive defined. Life, liberty, and property are not defined. Doing so is part of a continuous, ongoing discussion in our country.
Conclusion
The Constitution is a social construction, guiding us as we continue the experiment of making our government. It should be followed, but following it is not the same as following a statute. We have to continually refine concepts such as equality, liberty, life, property, cruel, and several other ambiguous terms. This ambiguity was, in my opinion, obviously purposeful -- the great thinkers who founded the nation could have been more explicit, but they left the discussion open. It is a testament to their effort that such a horribly flawed document has only had to be 27 times amended, yet the document retains vibrancy in a very different age. Trying to bind it into what we guess someone thought two centuries ago misses the point that it is designed to accommodate changing situations and citizenry without the need to be amended. Let's not continue making that mistake.
This first installment is on a fundamentalist interpretation of the Constitution. I have some expertise here, given that I have my JD and an undergraduate in English, so I will rarely be referring to other sources (outside the Constitution itself). In this discussion, I am defining constitutional fundamentalism as a combination of "originalism" -- look at what the words meant when they were originally written -- and "strict constructionism" -- go strictly by the words on the page, with no reference to anything external, avoiding inferences.
Original intent
Ethical considerations
Before I get into a more textual discussion, first I would like to point out that the founders were extremely flawed, and the document they made was, to modern sensibilities, horrible. The most obvious flaw, of course, is the institutionalization of slavery. Many copies of the document will now completely get rid of the portions discussing slavery, but the fact is that those clauses are still there, and will always be so -- they now just have no effect because later ages decided slavery was no longer acceptable in our society.
The white men in the Constitutional Convention acted in secret, beyond the scope of their authority, and created a document that marginalized women, blacks, Indians, and anyone that could not vote (at the time, adding those who owned no real estate to the list of the marginalized). That does not mean that the Constitution is still an ethical wreck, but it does mean that we should strongly question whether the original intent of the Founders should have strong ethical sway in any other deliberations here.
Whose intent?
When people talk about the original intent ... whose intent are they considering? Is it the intent of those that drafted the Constitution, such as James Madison? Is it the intent of the entire Convention? How about the state legislators that voted on it? Or maybe the people that voted in those state legislators?
This is not a trivial or meaningless undertaking. And, if you can't answer who, how can you answer what? We know, for instance, that these were politicians, and that, once Washington left office, these politicians were at each others' throats until the generation passed them by. There had to be a Great Compromise for allocation of representation. In other words, they disagreed. This fact should not be at all surprising, as these were revolutionaries, willing to take up arms against a lawful king ... so they were probably a wee bit opinionated, huh?
So, when they disagreed ... which intention wins out? The majority? The one most widely reported? The one cited most often in cases? ... Or just the one that you agree with?
Intent at what time?
The way we amend our Constitution is interesting. For most statutes, we actually change the language of the statute when we pass a new law. " ... shall not discriminate based on religion, ethnicity, race, or sex" may become "... shall not discriminate on religion, ethnicity, race, sex, or sexual orientation." We don't do that with the Constitution. All the original words are left the way they were, and we just add new words to the end. The new words take precedence over the old words.
That means that, each time you amend the Constitution, it's a new document that must be reinterpreted based on what the new amendment says. Of course, most of the time, the amendments are aimed at specific things: How you elect a President and Vice President, popular election of Senators, women's suffrage, to drink or not to drink, voting ages, etc. That means that a wholesale revision was probably not the goal (though there might often be unintended consequences).
There is an important exception among the amendments. It occurred immediately after the Civil War, and it is arguably the most important amendment: Amendment 14. The Civil War was fought largely because of slavery (so, see Amendment 13), but it was also about exactly how sovereign each state was, and how each state had to treat its own citizens. Prior to the 14th Amendment, there were almost no limitations on what the states could do. They could have their own state religions, they could freely abridge the right to associate, they could deny you a lawyer, almost anything.
The Civil War changed that. After slavery was ended, the South attempted to keep a sort of de facto slavery going through treatment of black citizens, so Congress responded with the 14th Amendment. All of the sudden, states were much, much less sovereign. Instead of saying what Congress "shall not" do, like in the Bill of Rights, now we get what States cannot do ... and we also get the all-important last clause, which says that Congress can pass laws enforcing these rights. All of the sudden (well, within half a century or a bit more, heh), the Bill of Rights applied to the states.
This was an incredible sea change, and there is no doubt that everyone knew it at the time. We fought a war over who was boss, and the national government won.
So, knowing all of this, knowing that each amendment changes the entire document, and knowing that the intent was now to limit the sovereignty of the states in ways not conceived by the Founders ... whose intent should rule? What sections are changed? What new considerations are part of every interpretation?
See, not so simple.
Strict construction
Switching to strict construction ... this concept shows up all over, frequently in contract law, in particular with what is called the "4 corners" approach to reading a contract. If it is not in between the 4 corners of the document, it doesn't count.
Strict constructionism also shows up in statutory construction, especially if the statute is designed to be exhaustive. Long statutes are trying to think of everything, so it sometimes is argued that judges should assume that legislatures did think of everything.
For most law and most statutes, though, there are large gaps. That's one reason why legislators began putting the purpose of the statute at the beginning, so those reading it (especially judges) would know the way to fill the gaps when questions arose.
The Constitution is a different beast altogether. As the most influential Justice of all time -- Chief Justice John Marshall -- said in McCullough vs. Maryland (1819), "We must never forget that it is a Constitution we are expounding." Congress was given adaptable powers because the Constitution was "... intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs." Id.
How do we know this? Well, some parts of the Constitution leave the door explicitly open, saying that there is more out there, but that "more" is still covered by the Constitution. One important place to find this language is in the 9th Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." In other words, just because we listed a bunch of rights here does not mean that there are not other rights that this Constitution protects. (There are a couple of legal maxims related to how items in a list should be interpreted, and this says ... hey, don't follow those.)
There are several more implicit areas, where the wording of the document was left ambiguous. Of course the brilliant men in the Convention could have been more explicit, but they chose not to be. It was a Constitution they were writing, tracing broad lines that purposely left the details in flux. For example, take a look at the 8th Amendment: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." What is excessive bail? Does anyone think that the Founders thought we would take the amount used in the late 19th Century as our guide now? What is cruel and unusual? If it was not unusual in the 19th Century, should it be okay now? Heck, if we wanted to amend, what if we simply gave the exact same wording? Then could we use our modern definition of unusual?
The much more likely reading is that this is to be left to the people to decide.
Strict construction, then, often makes little sense when reading the Constitution because the words we so often care about do not lend themselves to a "4 corners" approach. You simply cannot look into the text to find out what is cruel and unusual. You cannot find excessive defined. Life, liberty, and property are not defined. Doing so is part of a continuous, ongoing discussion in our country.
Conclusion
The Constitution is a social construction, guiding us as we continue the experiment of making our government. It should be followed, but following it is not the same as following a statute. We have to continually refine concepts such as equality, liberty, life, property, cruel, and several other ambiguous terms. This ambiguity was, in my opinion, obviously purposeful -- the great thinkers who founded the nation could have been more explicit, but they left the discussion open. It is a testament to their effort that such a horribly flawed document has only had to be 27 times amended, yet the document retains vibrancy in a very different age. Trying to bind it into what we guess someone thought two centuries ago misses the point that it is designed to accommodate changing situations and citizenry without the need to be amended. Let's not continue making that mistake.
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