Over the last decades, certain conservative political and legal activists have been very effective in selling a vision of the original Constitution as (1) basically perfect and (2) perfectly clear. From this perspective, the only modern approaches to the Constitution are to either (a) maintain it or (b) degrade it. This perspective has been effective in both conservative legal and religious sectors.
In the legal realm, the Federalist Society was founded to promote the idea of ‘original intent’ as the only reasonable basis for constitutional interpretation. It has succeeded in making originalism the dominant approach to legal interpretation among conservatives and perhaps the reigning legal doctrine in the courts. From a conservative standpoint, one of the chief advantages of originalism is its support for a dramatic scaling back of the rights recognized by the courts during the 1950s-1970s. Conservative jurists can substitute their reading of the ‘original meaning’ for two centuries of legal precedent while continuing to claim that liberals are the true ‘judicial activists.’
In the religious realm, the idea that the Constitution was originally (near) perfect accords with two key ideas popular among evangelical Christians today:
- That God inspired the founding generation to establish the United States as a “city on a hill.”
- That the original foundations of the nation are being eroded by liberals, secularists, socialists, etc.
A basically perfect constitution serves as evidence of divine inspiration. It also provides a convenient measuring stick against which to find liberal constitutional and political actions wanting. Rather than simply arguing with liberals, religious conservatives can claim that their opponents are actively contributing to the downfall of the United States by corrupting the original meaning of the Constitution.
But the fact is that the Constitution had never been either perfect or perfectly clear. Instead, its meaning was contested from the beginning and continues to be contested today. So every time two politicians differ over the meaning of the Constitution, this does not mean that one of them is dangerously degrading the founding document. It simply means that both are following a long tradition of battling over interpretation. Fundamentally, the battle over Constitutional interpretation is a battle over political power, not over the salvation or corruption of the nation.
There was a clip circulating the “Internets” a couple of years back lambasting Obama because, in reference to slavery, he said that Constitution had flaws. Conservatives jumped on Obama’s allegedly un-american view of the constitution as a “flawed document.” I think that is ridiculous and shows shallow appreciation of constitutional history. At the time got in a disagreement with my brother-in-law about it.
On the flip side, I would add “amend” to your listed potential options when dealing with the constitution. Let’s not forget that when the constitution is silent, we have the ability, however laborious, to change it to fit our modern society. I believe there are times for the judiciary to show interpretation and times to show restraint and deference to the legislative branch.
I think you’re right that a desire to amend it is a perfectly reasonable response to the Constitution. And certainly there needs to be a balance between judicial interpretation of the Constitution as a free-standing document and deference to the interpretation of the legislative and executive branches.
But the possibility of amending is drastically complicated if you begin with the proposition that the Constitution was once perfect. From that perspective, Constitutional amendments (including those passed between 1865 and 1913) are suspect by default. The only amendments for which there is rhetorical space are those aimed not at correcting or improving the Constitution (except as it’s been changed) but at reigning in government. So, conservatives encourage Constitutional amendments on marriage and balanced budgets in order to tie the hands of federal officials they don’t trust from taking actions that they think the Constitution already precludes.
You comment on slavery foreshadows a post I have for Wednesday on the imperfection of the original Constitution. (I’m trying to spread my postings to increase some consistency here.)