Myth: The government violates the plain meaning of the constitution.

Fact: The constitution is meant to be general, not specific, and is therefore open to interpretation.



Summary

Being simple and being specific are not the same thing. Our constitution is the former, but not the latter. It is therefore open to many interpretations -- much to the frustration of those who only see their version of its "plain meaning". But this simplicity is as it should be, because the constitution is meant to describe general principles of governance, not specific laws. The supermajority requirement to pass amendments also makes it virtually impossible for the public to try making the constitution into a more specific set of laws. Also, increasing the rate of amendments would politicize the constitutional process, and transfer the task of interpreting the constitution from the nation's judicial experts to the lay public.



Argument

What exactly comprises the "plain meaning" of the constitution? A wit once described it as "whatever your personal opinion happens to be."

Of course, everyone has different opinions. Not surprisingly, most people believe that their personal opinion is the correct one, and it is always those other people who misinterpret, twist, distort, violate and shred the constitution.

The above observation would suggest, then, that there is real value in a democratic interpretation of the constitution. After all, wouldn't the "plain meaning" of the constitution be the interpretation that is apparent to the most people?

Unfortunately, interpreting the constitution is a bit more complicated than this. The problem is that the constitution's simplicity invites multiple interpretations. This may seem nonsensical at first, but it is a phenomenon that legal scholars know well. To understand why, consider the difference between the following two sentences:

Sentence 1: Rachel wants you to bring her an apple.

Sentence 2: Rachel wants you to bring her an apple from the corner grocery store, but only if they are fresh and only if they are on sale.

Both of these sentences contain varying degrees of simplicity and specificity. The first sentence is simpler to understand than the second, and its meaning more obvious. But the second sentence is actually more specific, and limits your actions more than the first. And the way it does this is by using more words.

If the purpose of the constitution was to limit the government's behavior in highly specific ways, its language should have been specific, not simple. That is, it should have elaborated on specific limitations using entire paragraphs, defining its terms carefully and considering every possible exception and alternative. But the constitution does not do this; it is a brutally simple document. In fact, some of its amendments are no longer than one sentence!

Did the Founders make a mistake? What is the point in having a constitution that does not specify what it intends to limit? What is the point in establishing a set of guidelines that invite multiple interpretations and endless argument?

Actually, there is an enormous benefit. In a constantly evolving and changing society, highly specific language can also serve as a straight-jacket. For example, suppose that the Founders had included the following very specific amendment in the constitution:

"No innocent person shall be cut with a knife and allowed to bleed."

This might have made excellent sense in the 18^th century, when the constitutional authors were aware of only one such scenario: a criminal attack. However, as medical science progressed in America, medical doctors pioneered life-saving surgical techniques that would have indeed violated this constitutional amendment.

Specific laws are better left to Congressional legislation; and such laws should need only a simple majority to pass. The constitution is better suited for stating the general principles of governance, and because these are so important, they should require a supermajority to pass. Any attempt to specify the language of the Constitution runs the risk of straight-jacketing society, and correcting it will be all the more difficult because of the supermajority requirement.

Some conservatives argue that the constitution should be more specific about limiting the federal government's powers, and that if change occurs in society, we should change the constitution through the amendment process. (And if the supermajority requirement slows down constitutional change, well, they won't cry too many tears over it!)

There are three objections to this proposal. The first is that it politicizes the constitutional process. Currently, justices can review laws calmly and rationally for their consitutionality without worrying about the shifting winds of public opinion. But allowing the people's representatives to vote more often on what is constitutional would turn the constitution into a political football. Similar arguments have been made in favor of keeping the Federal Reserve Board independent. The value of such a policy can be seen in Britain, where the central bank was disastrously politicized after it was taken under direct control of elected officials.

The second objection is that the people do not have the deep knowledge of law, constitutional or otherwise, that justices have. By forcing the constitution to be both specific and frequently amended, conservatives would transfer the task of interpreting the constitution from the nation's experts to a public that is, unfortunately, semi-literate in legal matters. Again, the Federal Reserve is an excellent analogy. Most Americans have no idea of the difference between Keynesian and Monetarist policy -- a powerful argument for not letting them vote specifically and directly on these issues.

The third is that the supermajority requirement works at cross-purposes with the specificity requirement. Suppose we passed a very specific but enormous amendment that severely limits federal government regulation. How would this apply to pollution? Seventy percent of all Americans identify themselves as pro-environmentalist. It is conceivable that they would seek to ban "bad" forms of regulation, while encouraging "good" forms of regulation like banning pollution. But our society pollutes the environment with thousands of chemicals in thousands of ways. And not all of these emissions are bad. Carbon dioxide is a greenhouse gas -- but it's also a byproduct of human metabolism, in the very air that we exhale. So our super-specific constitution must list thousands of chemicals and pollution methods, identifying which ones are acceptable and which ones are not. Furthermore, industry is constantly inventing new chemicals and new ways to pollute. And scientists are constantly changing and adding to their assessment of environmental dangers. It's easy to see that a supermajority requirement is ill-suited to respond quickly and efficiently to such a rapidly changing, enormous and complex issue.

This example highlights another problem with over-specifying the constitutional role of government. How can everyone in Congress and all the 50 state legislatures become experts on the potential dangers of thousands of chemicals? The answer is, of course, that they can't. But the task of educating legislators becomes easier when only Congress has to vote on the issue, and only half of the representatives need to be convinced, not two-thirds. Ideally, this reduced number of legislators should be advised on environmental issues by experts from business, science, environmental and citizen groups. Their conflicting expert opinions should be assessed by the government's own experts, after which legislation is voted upon. And if a particular interest group feels that the resulting law violates their constitutional rights, they have the option of testing its constitutionality in the courts.

No doubt that some aspects of the Supreme Court need reforming. Many liberals believe that the judicial branch has gone too far in the direction of representative democracy; by giving Supreme Court justices lifetime tenure, they become largely unanswerable to the people. The most a president and Senate can do is be careful in nominating and confirming them; but this vetting process is not foolproof. It is often difficult to predict how a justice will actually vote on the bench, freed at last from all political restraints. For this reason, many liberals call for the election of justices, albeit over long terms (say, seven years) to avoid overly politicizing the bench.

Yet surely the underlying structure of our judicial system is correct. The constitution states general principles of governance and is amended by a supermajority of Congressional and state legislators. Meanwhile, more specific laws are passed by a simple majority in Congress, allowing society to respond quickly to changing circumstances, and are reviewed for constitutionality by an independent and expert Supreme Court. How can this system be fundamentally improved?

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