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This short essay is worth the limited time it takes to read….a small taste:
A Truly ‘Living’ Constitution
Years ago, when I was in law school, I had the chance to take a break from the study of contracts, conflicts, and corporations for a semester of the philosophy of law. The course was taught, not by a lawyer, but by an old, independent-minded philosopher, Paul Weiss, who died a few years ago at the age of 101.
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The only text we had for the course was the U.S. Constitution. It served Professor Weiss well as a means to help us inquire into legal and political philosophy, into rights and powers and liberties, and their limitations. For the first class, he read from the top of the text: “We, the people of the United States of America, in order to form a more perfect union . . .” Then, leaning forward on his cane, he asked, “Who are ‘we’?” We — meaning the small “we” of a handful of students and our teacher — spent the entire first session on that question, and the next several classes on the Preamble alone. We had good reason to do so, because it told us much: that the drafters of the document intended that it be an agreement by and from and among the people, and that it united them with their descendants, securing the justice and liberty just won.
Today is Constitution Day, when we commemorate the formation and signing of the Constitution on September 17, 1787 — as good a time as any to consider what the Constitution is. In fact, it’s a better time than most, because we are a nation increasingly divided by pressing constitutional issues, especially of the powers and limits of the federal government. From the corporate bailouts of 2008 to the health-care legislation of this year, the question has become whether the Constitution still applies, as it is written, or whether it has been overtaken by events. We have heard federal representatives treat questions about the constitutionality of their actions as hopelessly naïve or irrelevant.
But what is the Constitution? Fundamentally, it is a contract among citizens — a concise, comprehensive, and continuing understanding about how our federal government will operate. It reflects the widespread agreement of the nation’s citizens in 1787, as changed from time to time, and each time changed, again, by widespread consent. All thirteen states adopted the original Constitution, and all 27 amendments since have won the support of at least two-thirds of the members of both houses of Congress — which would be a daunting feat in these partisan days — and the ratification of at least three-quarters of the states. In requiring unanimity at the outset and broad consensus along the way, the Framers wanted the people to be united in agreement.
Like any written contract, the Constitution speaks for itself — it says what it says….
***
The only text we had for the course was the U.S. Constitution. It served Professor Weiss well as a means to help us inquire into legal and political philosophy, into rights and powers and liberties, and their limitations. For the first class, he read from the top of the text: “We, the people of the United States of America, in order to form a more perfect union . . .” Then, leaning forward on his cane, he asked, “Who are ‘we’?” We — meaning the small “we” of a handful of students and our teacher — spent the entire first session on that question, and the next several classes on the Preamble alone. We had good reason to do so, because it told us much: that the drafters of the document intended that it be an agreement by and from and among the people, and that it united them with their descendants, securing the justice and liberty just won.
Today is Constitution Day, when we commemorate the formation and signing of the Constitution on September 17, 1787 — as good a time as any to consider what the Constitution is. In fact, it’s a better time than most, because we are a nation increasingly divided by pressing constitutional issues, especially of the powers and limits of the federal government. From the corporate bailouts of 2008 to the health-care legislation of this year, the question has become whether the Constitution still applies, as it is written, or whether it has been overtaken by events. We have heard federal representatives treat questions about the constitutionality of their actions as hopelessly naïve or irrelevant.
But what is the Constitution? Fundamentally, it is a contract among citizens — a concise, comprehensive, and continuing understanding about how our federal government will operate. It reflects the widespread agreement of the nation’s citizens in 1787, as changed from time to time, and each time changed, again, by widespread consent. All thirteen states adopted the original Constitution, and all 27 amendments since have won the support of at least two-thirds of the members of both houses of Congress — which would be a daunting feat in these partisan days — and the ratification of at least three-quarters of the states. In requiring unanimity at the outset and broad consensus along the way, the Framers wanted the people to be united in agreement.
Like any written contract, the Constitution speaks for itself — it says what it says….
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