Is the U.S. Constitution perfectly clear in every respect?


A lot of conservatives have been chortling this week over something liberal pundit Ezra Klein of the Washington Post said on TV the other day about the U.S. Constitution. (See THIS.)

Here’s Klein’s response to the controversy:

The initial interpretation was that I’d said the Constitution is too complicated to understand because it was written a long time ago, and then, as the day went on, that I’d said the document itself is nonbinding. I went back and watched the clip — or at least the part someone clipped and sent me, which is above — and thought I was clear enough. But when a lot of people misunderstand you at once, the fault is usually yours. So if I was unclear: Yes, the Constitution is binding. No, it’s not clear which interpretation of the Constitution the Supreme Court will declare binding at any given moment. And no, reading the document on the floor of the House will not make the country more like you want it to be, unless your problem with the country is that you thought the Constitution should be read aloud on the floor of the House more frequently. In which case, well, you’re in luck!

But even if Klein’s remarks were open to misunderstanding, the point he made about the Constitution being “complicated” is valid.

Indeed, there are too many Americans, especially on the political right, who like to pretend that our national charter is crystal clear on every issue it addresses. It’s not. That’s why we have courts to interpret the Constitution, and that’s why those courts often are divided, rather than unanimous, in their interpretations.

The Founding Fathers intentionally wrote various ambiguities into the Constitution. They recognized that social and political conditions would change over time and that a little wiggle room — within certain fundamental limits — was required in the document.

As Thomas Jefferson put it:

I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.

None of this is to say that we shouldn’t have an ongoing argument over whether the Constitution is a “living” document. That argument is a healthy exercise in that it invites greater focus among the populace on some of the fine points of constitutional law, original intent, separation of powers and other such matters.

But that argument cannot be settled by simplistic declarations that the Constitution is clear on each and every matter of law and governance.

That’s why I think it would be silly of Republicans in the incoming 112th Congress to insist that every new bill presented on the House floor include a reference to which article in the Constitution authorizes the enacting of such legislation. But that’s what they’re planning to require. (See HERE.)

It’s as if they think that the constitutionality of any proposed law should be determined by legislators rather than by the courts. Granted, lawmakers should consider constitutional issues when debating legislative proposals. But the GOP’s approach, which is born of Tea Party zealotry, seems to invite congressional usurpation of what is fundamentally a judicial function.



  1. Chuck Sweeny

    In Constitutional Law class at UIC, I learned this: The constitution means whatever five members of the Supreme Court say it means.
    And, the Supreme Court follows the election returns..

  2. Good post, Pat. Simpler is better, even when it leaves a few things open to interpretation. When you try to spell everything out in every scenario, you get our current 1,000-page bills that no one understands and that limit your options. The incredible beauty of the Constitution is that it outlines timeless general rights and principles but also allows for change.

  3. Chuck: You’re absolutely right, except perhaps for the last part.

    There have been times when the Supreme Court has handed down generally unpopular decisions. For example, a poll conducted shortly after the high court’s ruling on flag-desecration in 1989 showed that 75 percent of Americans disagreed with the decision.

    Some of the rulings in the ’60s and ’70s on the rights of criminal defendants were also less than popular.

    And earlier this year, there was widespread public disagreement with the court’s ruling in the Citzens United case on financing of political campaigns. Even a solid majority of people identifying themselves as Republicans were opposed to the ruling, although their party’s members of Congress mostly agreed with the decision.

    (Interesting footnote about that Citizens United case: Hard-core conservatives in Congress were on the same side as the ACLU in that case. In fact, the ACLU filed a brief in the case on the side of the prevailing corporate interests. As they say, politics makes strange bedfellows.)

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