^ it might have been wiser to not have our Constitution be a written one
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It was not a given that the document we call “the Constitution” would be a written one. From the decision to make it so follows much of what the Constitution is and does. From it also follow most of the misreadings made by those who evoke it as a political calling cry.
The British have a constitution : but it remains unwritten. (Magna Carta was not, and is not, a British Constitution.) Many other nations have developed without a written Constitution. Not writing the constitution of a nation, state or city avoids the crystallization that comes with writing. An unwritten constitution can change, develop, adapt to the felt needs, era by era, of a society a lot more easily than a written one. (for example : France, from the 6th to the 12th Century, changed enormously, on an ad hoc basis, according to the practicalities of the time; not only did France have no written Constitution, it often had almost no court officials who could read or write.)
We see the difference play upon language itself. English spelling reflects how our words were pronounced at least 600 years ago. The pronunciations have changed as people use the words in speech. No one asks, when he speaks, how am I supposed to pronounce this word or that ? We simply speak as best we feel.
When we read the words upon the pages marked “The Constitution,” we read not the words we speak, but the words varnished and formal. This is true not only of the Constutution. If we sing Episcopal hymns, we sing “thou” and “thee” and all kinds of words written on the hymnal page which no longer get used in speech. Hymnal words have a context of their own, that probably is not the conntext of our actual lives. The same occurs with the Constitution ‘s words and phrases.
This troubling disconnect between the Constitution’s printed words and the words that we actually use in daily life makes for much misapplication. As the Constitution was written in 1787, using words that its framers used ordinarily, many of these words now mean quite differently from what they meant to the men who first put them to parchment 228 years ago.
Responses to this riddle mostly miss the significance hereof. The “originalists” who assert that we should read, and apply, the Constitution as those who framed it deny to us today the validity of the lives we lead, today, according to what we feel the need to do, today, as we go about. Is the Constitution a document for the living, or isn’t it ? Why should the living apply words according to their meaning ten generations ago ? Are not our life trajectories every bit as sacred as the lives of those who faced their life decisions 228 years ago ? The framers did not create a Constitution based on documents written in 1559, after all. Nor did the men of 1559 enact charters using the words of 1331.
The Constitution contains no mention of any religion — though it alows people to practice one, yet Originalists approach the Constitution the way Christians approach the Bible. To believers, the ministry and death of Jesus, whlo lived some 1990 years ago, is the only revelation. But is it reasonabke to believe that our generation is to be denied a Savior appearing among us, now and today ? Are we any less created by the Creator than the people of Jesus’s day ? You can believe, if you like, that God sent his son then and never will do so again, but that belief undermines the creation that believers believe in. In the same way, Originalists deny us today the right to have the Constitution apply to us, today and now.
Faith may benefit from its belief in one Revelation only. For secular human life, the principle cannot stand. Were our Constitution unwritten, the one time only theory would not even arise. Politicians and citizens would apply the rules to meet eigencies as they happen. Why should a written Constitution not enjoy a similar practicality ? The living have every right to work out the societal rules that will govern their lives : who better to do so, than those who will have to live with the rules thus made ?
The Constitution has always expanded, even as the nation it guides has done so. Always in the direction of greater participation, larger equality, more comple commerce. Every Amendment has widened the Constitution’s sanctions — with only one exception, Prohibition, whose 1933 repeal confirms the law of Constitutional expansion. I see no time at which the Cionstitution will cease to so expand. After all, its stated purpose is “to promote the general welfare” — a mission every word of which is basic.
The welfare that the Constittion promotes generally is the welare of those who live in it. Just as today the Constitution must mean what today’s citizens read it to mean, so tomorrow will the Constutuon mean something a bit else. This is what it must do, if it is to remain trusted by the living people — now and in futuro — whose political arrangements it professes to guide.
—- Mike Freedberg / Here and Sphere