Reflecting on Constitution Day

Representatives Dennis Kucinich (D-Ohio) and Ron Paul (R-Texas) don’t have a lot in common. Kucinich is for tighter gun control; Paul is not. Kucinich is pro-choice; Paul is pro-life. Kucinich voted for the Affordable Care Act; Paul did not.

The differences abound.

Surprisingly, then, both men claim the same document as the basis of their congressional decisions. Reportedly, they both carry around pocket-sized copies of the Constitution while they work.

These men look to the same text for guidance, but their interpretations of what that means for governance could hardly be more different.

The Constitution is divisive not just for congressmen, but also for the Supreme Court’s members whose job it is to interpret its meaning.

In the term beginning in Oct. 2011, the Court split five to four in one out of every five times it heard a case. The justices are all charged with the same duty — to “support and defend the Constitution of the United States” — but their interpretations of what this means vary widely.

In larger society and the press, many are not even convinced that supporting and defending the Constitution is such a good idea anymore. Ronald Dworkin, one of the most highly-esteemed Constitutional scholars in the United States, argued the following in his column “Why The Mandate is Constitutional,” published in May 2012: “If the Court does declare the act [the Affordable Care Act] unconstitutional, it would have ruled that Congress lacks the power to adopt what it thought the most effective, efficient, fair and politically workable remedy — not because that national remedy would violate anyone’s rights, or limit anyone’s liberty in ways a state government could not, or be otherwise unfair, but for the sole reason that in the Court’s opinion our constitution is a strict and arbitrary document that denies our national legislature the power to enact the only politically possible national program.”

Dworkin’s interpretation of what the Constitution is and is not, and how this determines the justices’ decisions, shows a trend toward relegating the text of the Constitution to a base position, allowing it to be ignored when politically expedient.

Dworkin is a smart man. He knows that state’s rights are not the same as federal rights, and that finding a “politically workable remedy” to society’s problems is not the criterion by which justices decide constitutionality. But deciding a case in this way allowed the outcome he desired (and received).

Some would claim that this isn’t a devaluation of the Constitution, but an improvement of it. As Ezra Klein famously said, the Constitution, “[w]ritten more than 200 years ago, when America had 13 states and very different problems … rarely speaks directly to the questions we ask it.”

Now, everyone knows the framers of the Constitution could not have possibly envisioned the society in which we now live. But something that is often obscured is the fact that they also knew that they could not possibly envision their nation’s future. They thus created a system for altering the document.

Justice Ruth Bader Ginsburg is fond of pointing out that, at the time of the Constitution’s creation, she could not have been appointed a justice of the Court.

What she doesn’t mention is the fact that America ended discrimination based on gender by amending the Constitution. The justices then interpreted the Constitution in light of its new amendments, protecting the rights of historically disadvantaged groups.

The Supreme Court justices are great thinkers, and they surely have strong personal opinions on many of the cases they hear. And, necessarily, their jobs come with much power. In the past, justices have been responsible for expanding the definition of eminent domain, defining abortion as a Constitutional right, ending school segregation — and the list continues.

They’ve been and will continue to be responsible for taking a slew of repulsive and commendable steps for our nation. But we must pause and consider these decisions’ bases.

Running for president in 2008, President Obama claimed that his position on gay marriage was “evolving”. Had his evolution on gay marriage led him to oppose it, many would have questioned his use of this term to describe it.

An evolution, in modern usage, implies a growth upward. It is then perfectly fine for lawmakers to determine the direction in which society should be growing, and to take the steps necessary to get it there.

But deciding a direction for society is an inherently subjective process. The country is split roughly evenly on issues of gay marriage and abortion — two issues the courts of the United States routinely hear. By taking these issues out of the public discourse and stretching Constitutional meanings to tip the scales in favor of one side is to both circumvent the processes set up by our founders and to cheat the American people.

Sept. 17 was America’s Constitution Day. I hope that with so many divisive issues coming before the Court, the justices will treat interpreting the document with restraint.

Next week, the Court will hear a case on race-based affirmative action. Rather than deciding the case with personal notions of what society should be, we can hope that the justices decide with the Constitution as their guidepost.