You humans amaze me. When James Maditail and the others met for the Constitutional Convention, they were writing by committee. Some of their ideas captured wisdom in a nutshell, and some were just nuts. Then the humans tried to transcribe the chittering and it got more muddled. (More)
You may think it’s awful to suggest the U.S. Constitution was written by squirrels, but it makes more sense than saying it was written by God. You know squirrels exist, at least.
Still, a Supreme Court Justice would be howled out of the room if he even hinted the original Constitution were written by squirrels. But this week Antonin Scalia implied it was written by God. He should have been howled out of the room, because that’s nuts.
I disagree with “original intent” theories from the get go. They look for something that never existed: a singular original intent. There was no singular original intent for the Constitution, because there was no singular Original Intender. The Constitution was written by a committee, and it shows. Its language reflects unresolved disputes and half-baked compromises. (“Three-fifths of all others,” anyone?)
The ink was not even dry before people began arguing over what it included and didn’t. Those arguing were stubborn enough that the original Constitution would not have been ratified without its first ten Amendments – the Bill of Rights – tacked on.
So when Justice Scalia said “So don’t mess with the Constitution,” as if were perfect in its original form, he stands at odds with the one of the few things we can know for certain about the Framers’ attitudes and intentions: they knew humans wrote it and intended that later humans could change it. They even spelled out two methods for changing it, in Article V:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Translated from 18th century legalese, that means:
- Amendments can be proposed in two ways: (a) by an act approved by two-thirds of each House of Congress; or, (b) in a new Constitutional Convention called for by two-thirds of the state legislatures.
- Once proposed, amendments must be ratified by three-fourths of states, either by the state legislature or a state convention.
- Once ratified, an amendment is “valid for all Intents and Purposes” as if it were part of the original document.
- Amendments cannot change clause one or four of Article I, Section 9, nor can states lose equal representation in the Senate without their consent.
I’m just a squirrel, but that doesn’t seem to me like the writing of people who thought their ideas were handed down on stone tablets from God. I’ve read the Bible, and it has no passage explaining how later people can amend it. On the contrary, the Bible says in two places – Deuteronomy 4:2 and Revelation 22:18 – that nothing may be added to or taken from scripture. (This raises an interesting conundrum for Biblical literalists: many books in what Christians call the Old Testament, and all of the New Testament books, were added after Deuteronomy. Oops.)
Justice Scalia goes on to explain that he really wishes the 20th century had never happened and we should return to the 19th century by repealing the 17th Amendment:
I would change it back to what they wrote, in some respects. The 17th Amendment has changed things enormously. […] We changed that in a burst of progressivism in 1913, and you can trace the decline of so-called states’ rights throughout the rest of the 20th century.
Again, I’m just a squirrel, but the history I’ve read said “the decline of so-called states’ rights” had to do with a bunch of people killing each other over one of the nuttiest ideas in the original Constitution: whether some people could own other people as property. (“Three-fifths of all others,” anyone?)
Justice Scalia also called the original Constitution “the birth of political science.” Well here’s a squirrel’s thought, Mr. Justice: science advances.
When Isaac Newtail nudged that apple out of the tree onto Isaac Newton’s head, that prompted an entirely new set of ideas about why and how objects move, both here on earth and out in the cosmos. Newton faithfully transcribed Newtail’s chitterings and helped with the math, and the result was what we know as classical physics. Classical physics is still very useful, but a few centuries later Albert Eintail batted nuts around a Swiss patent office to show that classical physics was incomplete. We now know that Newtail, Eintail, and their human collaborators had approximations of good ideas – better than what had come before – but their approximations are still being refined and improved.
Science advances. Scripture doesn’t. That’s why the Constitution cannot be both “Providential” and “the birth of political science.” And Article V tells us which of those the Framers thought of their work their work to be.
Justice Scalia’s idea of the Constitution as Holy Writ isn’t wisdom in a nutshell.
It’s just nuts.