A number of prominent writers, including my bloleague Robert Schlesinger, believe they have spotted an inconsistency between the so-called “Tea Party types’” veneration of the U.S. Constitution and their desire to amend it.
It’s an interesting observation but one that is off the mark. The desire to change the Constitution by amending it is actually an expression of respect for it rather than a kind of populist inconsistency.
Let me explain.
In a general sense there are two schools of thought these days when it comes to the meaning of the U.S. Constitution. One is based on the idea of strict interpretation, that the document means what it says and it says what it means. The other relies on a more loose understanding of its protections and assignments of responsibility in line with the idea that is a “living, breathing document.”
The latter interpretation holds that the understanding of what the Constitution says needs to be measured against contemporary mores and has been used, even recently, to support an end run around the need to amend it.
There is perhaps no more obvious example of this than the legal reasoning underlying the U.S. Supreme Court’s decision in Roe v. Wade which, along with the companion ruling in Doe, made abortion legal everywhere in America up through the third trimester.
In writing the decision of the court Justice Harry Blackmun, a Nixon appointee, made use of the right to privacy developed by Justice William O. Douglas in the earlier Griswold v. Connecticut case.
In Griswold, Douglas, who had been appointed to the bench by Franklin Delano Roosevelt, explained that a right to privacy heretofore unrecognized in fact emanated from the “penumbras” of the Bill of Rights, leading to the creation of “zones of privacy.” That right, Blackmun wrote, also prevent the government from maintaining its ban on abortion.
The ruling overturned a number of state laws that did, in fact, ban abortion and federalized what had been, up to that time, a matter thought left to the states under the strictures of the Constitution’s 10th Amendment.
Whether you agree or disagree with the reasoning Douglas and Blackmun each applied, it is undeniable that in both cases they changed the Constitution, and in a radical way, by reading those changes into it. Those who supported the outcomes these rulings produced did not--indeed to this day have not--engaged in a serious political campaign to pass a constitutional amendment that would keep abortion legal or that would codify Douglas’s “zones of privacy” because they know, even today, it would be a losing battle.
Under the first approach, the one that most Tea Party activists apparently endorse, efforts to change the Constitution have to come in the front door and be subjected to a rigorous national debate, not snuck in through the back door after curfew.