The dual nature of the U.S. Constitution
By Kristopher A. Nelson
in June 2009
400 words / 2 min. It is so much more fun to “expound” on the “adaptable” Constitution and simply pretend that the “hard-wired” one can always be “worked around.” But what if it can’t? What if there is a gorilla (or rattlesnake) in the room?
Note: this post is from 2009. Evaluate with care and in light of later events.
Sandy Levinson has an interesting response to “It Is a Constitution We Are Expounding,” subtitled “Collected Writings on Interpreting Our Founding Document,” from the American Constitution Society:
Put to one side that the Constitution has not “endured for 220 years,” unless one recognizes, as Joyce Appleby once put it, that it was “in the shop” over a decade in the 1860s, not least because the bad brakes and slick tires built into the original 1787 Constitution in fact helped drive us over a cliff, as Mark Graber has demonstrated in his magnificent book on Dred Scott. The more important problem is that the Constitution does most certainly does not consist only of “majestic generalities.” The “majestic generality” Constitution is only one of our two Constitutions. I have no problem with the Equal Protection Clause, the Due Process Clause, or the other such “open-textured” parts of the Constitution. Rather, it is the other Constitution that the ACS, alas, continues to prefer to ignore, the parts – I won’t bother rehearsing all of them once more – that are not really subject to “adaptation” in order to achieve a better society. It is so much more fun to “expound” on the “adaptable” Constitution and simply pretend that the “hard-wired” one can always be “worked around.” But what if it can’t? What if there is a gorilla (or rattlesnake) in the room?
An interesting perspective. I hadn’t quite thought of the Constitution this way before – as essentially two kinds of document, one detailed and specific, the other broad and general – but it helps to frame many of the conflicts and issues that emerge in Constitutional law.
Different readers tend to focus on different aspects, meaning that castigating a judge for “activism” who is interpreting a general Constitional issue may be missing the point entirely – interpetation is exactly what is required when the law is unclear. But calling a judge “activist” who changes part of the “other” Constitution – parts that are specific and detailed – may be spot on. (Although even these areas are rarely completely clear and fixed, since at a certain level language changes and evolves, and meaning is not completely fixed – nevertheless, the distinction makes sense.)
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