September 1, 2002

Humpty Dumpty: Living Constitutionalist

By: James N. Markels

“When I use a word, it means just what I choose it to mean–neither more nor less.” –Humpty Dumpty

When “Through the Looking Glass” was published in 1872, I doubt Lewis Carroll ever imagined that his characterization of Humpty Dumpty–a most cantankerous and frustrating egg–would become a major American legal scholar. In fact, there is little doubt that Humpty Dumpty formulated, via his quote above, the essence of modern legal interpretation that now dominates in America: living constitutionalism. The idea of a “living Constitution” is that we should be allowed to interpret it however best suits us today, regardless of what the words say or what the drafters meant–we choose what things mean as it pleases us. While this approach sounds useful (after all, how could the Founders have anticipated the world today?), since we must use words to define and enshrine our rights, the more we allow those words to be twisted and bent, the sooner our rights evaporate.

Consider the First Amendment’s famous clause: “Congress shall make no law respecting an establishment of religion . . .” This has generally been read to ensure that Congress (and the States, through the Fourteenth Amendment) won’t promote or discriminate against religion, and I’m sure most people would describe it as part of our “freedom of religion,” in layman’s terms. But couldn’t it also be read to mean that Congress is able to make laws that disrespect cathedrals? Think about it: The word “respecting” can also mean “to honor,” and an “establishment of religion” could also pertain to a religious building, much as a bar is a “drinking establishment.”

Put together, maybe the First Amendment really does allow the government to lock up Catholics and deface their cathedrals, in total opposition to what the Founders wrote and intended. Humpty would be the first to remind you that words can have different meanings, so why not these alternative meanings? Just because religious freedom happens to work for us now?

If you think that this is far-fetched, consider that Humptyism has been in active use at the Supreme Court since the beginning. Take Justice Potter’s famous view of the meaning of “obscenity” in Jacobellius v. Ohio: “I know it when I see it.” He referred to it as his “Casablanca Test,” based on his tour of duty in Casablanca as a Navy lieutenant, observing the pornography his shipmates would bring on board. And only until recently the word “commerce” meant just about anything you could imagine to the Supreme Court, including the act of not engaging in trade. A farmer growing a crop for his own personal use was interpreted by the Court as interstate commerce since he would not have to purchase what he grew from other farmers, thereby affecting their ability to sell their crops.

Sometimes Humptyism can find words where they never existed before. Sections 9 and 10 in Article 1 of the Constitution prohibit Congress and the States from passing any “ex post facto Law.” Ex post facto laws are those that apply retroactively so you can be punished for doing something that at the time was perfectly legal. These laws are obviously unfair, as they force you to be held responsible for laws that aren’t even in existence yet. The Founders appreciated this, and so the Constitution puts no qualifications on its prohibition of ex post facto laws. So they’re all banned, right?

Wrong. In 1798, with the ink on the Constitution barely dry, the Supreme Court ruled in Calder v. Bull that only criminal ex post facto laws were banned, while civil ones were okay. That gives the green light to fun things like retroactive tax increases. How does that figure? Where in the Constitution was a distinction made? Nowhere. And get this: Calder still hasn’t been overturned.

This state of affairs can make one feel pretty hopeless. What could possibly be written that could prevent Humptyism? Any words you use could have alternative meanings used instead, or people could interpret the words according to their own experiences rather than yours; and if all else fails, they can just pretend words are there anyway that take them where they want to go. And yet words are all we really have to work with to define our rights and restrain the powers of government.

Living constitutionalists, who use words as weapons in any way possible to further their own interests, are a threat to the great ideals inherent in law. To me, the First Amendment cannot be interpreted to allow religions to be disrespected, no matter what. The intentions of those who wrote the clause were clearly against such a notion. Yes, words have wiggle room, but to exploit them would weaken the foundations we all depend on. Anyone who doesn’t like what the First Amendment stands for is free to try to amend it and pick new words, else their view hasn’t earned consideration. It might not be efficient, but at least words–and more importantly, our rights–will mean something.

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