Richard Stengel on the Cult of the Constitution

16 09 2011

To mark Constitution Day, Time published an article by Richard Stengel on the cult of the constitution (i.e., the tendency of Americans to ask what the drafters of the 1787 constitution would think of particular modern issues).

In the United States, it has long been customary for politicians and constitutional lawyers to appeal to the “original intent” of the “Founding Fathers”. This mode of argument overlooks the enormous technological, economic, and above all ethical gulf separating the eighteenth-century slave-owners who wrote the American constitution from twenty-first century Americans. Moreover, it rests on the dubious notion that people ought to be restricted by agreements made by the dead, a theory that was demolished quite effectively by Thomas Paine, the pamphleteer whose writings helped to inspire the American Revolution in the first place. In 1792, Paine wrote:


It requires but a very small glance of thought to perceive that although laws made in one generation often continue in force through succeeding generations, yet they continue to derive their force from the consent of the living. A law not repealed continues in force, not because it cannot be repealed, but because it is not repealed; and the non-repealing passes for consent.

But Mr. Burke’s clauses have not even this qualification in their favour. They become null, by attempting to become immortal. The nature of them precludes consent. They destroy the right which they might have, by grounding it on a right which they cannot have. Immortal power is not a human right, and therefore cannot be a right of Parliament. The Parliament of 1688 might as well have passed an act to have authorised themselves to live for ever, as to make their authority live for ever. All, therefore, that can be said of those clauses is that they are a formality of words, of as much import as if those who used them had addressed a congratulation to themselves, and in the oriental style of antiquity had said: O Parliament, live for ever!

The circumstances of the world are continually changing, and the opinions of men change also; and as government is for the living, and not for the dead, it is the living only that has any right in it. That which may be thought right and found convenient in one age may be thought wrong and found inconvenient in another. In such cases, who is to decide, the living or the dead?

As someone who grew up under Canada’s monarchical regime, I’ve always been somewhat amused by the argument that present-day Americans are morally obliged to defer to the values embodied in an 18th century constitutional document. After all, the American Revolutionaries saw fit to overthrow the 17th century system of government they had inherited. Anyway, it is nice to see that the spirit of Thomas Paine lives on in the United States. Stengel mercilessly and correctly skewers the contemporary American cult of the constitution in a piece that begins as follows:

Here are a few things the framers did not know about: World War II. DNA. Sexting. Airplanes. The atom. Television. Medicare. Collateralized debt obligations. The germ theory of disease. Miniskirts. The internal combustion engine. Computers. Antibiotics. Lady Gaga.

People on the right and left constantly ask what the framers would say about some event that is happening today. What would the framers say about whether the drones over Libya constitute a violation of Article I, Section 8, which gives Congress the power to declare war? Well, since George Washington didn’t even dream that man could fly, much less use a global-positioning satellite to aim a missile, it’s hard to say what he would think…
You can read more of this article here.

[1] Jack N. Rakove. Original Meanings: Politics and Ideas in the Making of the Constitution (New York : Alfred A. Knopf, 1996), 3-23.





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