When Americans debate important legal questions involving the Constitution – guns, gay marriage, police surveillance, affirmative action, to name just a few – our founding document often ends up seeming like a Rorschach blot or a cloud in the sky: everyone sees something different in it.
A conservative activist who identifies with the tea party likely will have a different perspective on the Constitution than the president of the local ACLU chapter. In part, this is because our Constitution deals with a variety of subjects. For some, the articles of the Constitution that define and limit the powers of Congress or the executive branch are its most critical and indispensable provisions. Others may believe that the Constitution’s true glory resides in its passages preserving individual liberties against arbitrary or discriminatory government action.
A diversity of perspectives about the Constitution is not a bad thing; indeed, in a free country it is inevitable, and usually a good thing.
The only time that debate and disagreement about the Constitution are illegitimate is when they are uninformed. And so the approach of Constitution Day this Wednesday is an appropriate time for all of us to commit to re-reading (or reading for the first time) the Constitution, and to engaging in a dialogue with our fellow citizens where we listen as much as we speak.
The point of this civic exercise need not be to achieve some sort of consensus about the Constitution’s meaning. After all, many of our nation’s most learned jurists have disagreed powerfully over how the Constitution should be read and interpreted.
Rather, the point is to help ensure that we all proceed from a common point of reference, and to sharpen our own views and conclusions in the way that comes from subjecting them to open and robust debate.
Those who wrote and adopted our Constitution in the late 18th century did not set out to write a detailed owner’s manual for the young nation. They anticipated that our Constitution’s meaning and application to specific issues would reveal itself over time. As John Marshall, an early and influential chief justice, wrote in a famous decision, the nature of the Constitution “requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.”
In many of its most important passages, the Constitution speaks in what the late Justice Robert Jackson aptly called “majestic generalities.”
This fact does not make constitutional interpretation easy.
But it does tell us that concepts like “liberty” and “equal protection of the laws” must necessarily evolve and grow in keeping with the progress and diversity of American society.
As Justice Anthony Kennedy wrote in an important decision in 2003 holding that gay sex between consenting adults in the privacy of the home could not be criminally prosecuted, had the drafters of our Constitution and its amendments “known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight.”
We know from experience, Kennedy wrote, that “later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
Thus, on Constitution Day, let us be mindful of what a profound tragedy it would be if we lost that capacity to seek greater freedom because we had lost the ability to read, reflect upon and intelligently debate the document that forms the foundation of our government and the charter of our most essential rights and liberties.
Editor’s Note: Read the United States Constitution.
Steve Sanders is an Associate Professor at the Maurer School of Law at Indiana University Bloomington. He serves on the National Advisory Committee for the Center for Civic Literacy. This post was originally published on September 14, 2014 in the Fort Wayne Journal Gazette to celebrate Constitution Day and is republished here with the permission of the author.
Image: “Scene at the Signing of the Constitution of the United States” by Howard Chandler Christy – The Indian Reporter. Licensed under Public domain via Wikimedia Commons – http://commons.wikimedia.org