Volume 10, Issue 1: Magistralis
The Hon. Justice Humpty Dumpty
The United States Constitution was drafted, debated and ratified, by a people very jealous of the rights and liberties which had taken generations of its ancestors centuries to secure. The written constitution set forth in concrete terms a charter provisioning a general government for a confederation of states and a multitude of people. It was written down for the very reason that words, embodied and enacted in laws, are indeed the masters. Words, it is commonplace to say, have meaning. If we are the masters, and if words can take on any meaning we want at any time, communication becomes impossible.
While the usage of words might change over time, the meaning of a word when it is uttered or written down is immutable. The writers of the Constitution intended to express certain ideas, and they used words which they knew would accurately convey those ideas to the readers of the document. In order to understand those ideas two hundred years after they were expressed, we need to understand the meaning attached to the words at the time they were used. This is called the "originalist" method of constitutional interpretation.
In contrast, the "living document" method of constitutional interpretation holds that the drafters of the Constitution were not trying to lay down concrete rules of government, but were instead trying to set forth general ideals, aspirations and goals which government should strive to meet. Thus, the meaning of the Constitution might change over time, as society becomes more enlightened as to what those ideals are and how they are best to be achieved. It is the living spirit of the Constitution which matters; not the dead letters. The drafters fully anticipated, according to this theory, that what they held as constitutional in their day might well be unconstitutional later on as the meanings of the aspirations they declared develop, and as new rights are discovered in the "emanations" and "penumbras" of the constitutional language.
It is this sort of postmodern nonsense that dominates modern jurisprudence and has rendered the language of the Constitution almost meaningless. As Justice Antonin Scalia so aptly put it, "There is little use in having a written constitution if textual construction is so indistinguishable from poetry."† Courts have run roughshod over the specific freedoms guaranteed by the Constitution, and allowed the federal government to wield powers far beyond those enumerated, all because the enlightened intelligentsia have deemed it necessary in order to secure those broader democratic aspirations which they mystically read between the lines. But the more aspirations the courts find, the less real liberty we actually enjoy.
Conservatives propose two general solutions to the problem of such judicial deconstruction: laws passed by Congress which restore freedoms taken away by the courts (the Religious Freedom Restoration Act, for example), and constitutional amendments clarifying what various passages of the Constitution mean (such as an amendment prohibiting abortion, or explaining the "free exercise" clause). These proposals, while well intentioned, assume that there is something amiss in the Constitution itself, and thus they fail to address the root problem. There is nothing wrong with the language of the Constitution, which is plain enough to any honest reader even after two hundred years. The problem lies in the method of interpretation. Unless that is addressed, any addition to the Constitution will be subjected to the same deconstructionist analysis until it is rendered just as meaningless as the rest of the document.
The ultimate solution will never be achieved in any political manner at all. The problem of modern constitutional interpretation is rooted in the Church.Words have meaning because God gives them meaning. Not in the sense that He divinely inspires the dictionary, but in the sense that words communicate something definite. God's Word is so definite that it produces and sustains every last detail of a very tangible and infinitely complex creation. God's Word became flesh and dwelt among us, and shed His blood for our sins. There is no room in God's Word for human deconstruction.
But the Church, as the keeper of God's word, has failed in her duty to faithfully preserve and teach God's Word. Deconstruction began in the Church when the Scripture ceased being taught as the only infallible rule to direct us what we are to believe concerning God and what duty He requires of us, and became, instead, a collection of metaphors showing man the aspirations toward which he should strive as he seeks to improve himself by his own lights. The meaning of the Bible is left to us to decide and might change over time as we become more enlightened. Instead of the Word being our master, we make ourselves the master of the Word.
If we can play this game with the very Word of God, how much more with the word of man? If the Bible does not have absolute meaning, then the Constitution certainly doesn't. Judges deconstruct the Constitution because preachers taught them how to do it. It is the Right Reverend Humpty Dumpty that needs to be pushed from the wall. Only then will the Honorable Justice Humpty Dumpty fall.