Is it time to 'reconstitute' the Constitution?

In 2010, NPR's legal affairs goddess, Nina Totenberg interviewed Justice Stephen Breyer on background for his book, Making Our Democracy Work, A Judge’s View:

U.S. Supreme Court Justice Stephen Breyer has sparred for years with Justice Antonin Scalia on the printed pages of legal opinions. The two have even debated about constitutional interpretation in public. And now Justice Breyer has taken his argument to the printed pages of a book written for popular consumption.

In his first interview about the new book, Breyer's targets are the ideas of originalism and textualism advocated by Scalia — the notion that the framers of the Constitution meant what they said and no more — and that the provisions of the Constitution are limited to what they covered back in 1789.

Scalia’s view is much more black and white. “The Constitution that I interpret and apply is not living, but dead,” he famously said. Scalia contends that the Constitution is not flexible and its meaning cannot change over time. To allow the Constitution's meaning to morph over time, he contends, just allows judges to say it means whatever they want it to say.

Not so, Breyer says.

“People think we decide things politically,” Breyer says, “or that the only way to protect against subjective views of judges is to have something called originalism, which is as if you could reach decisions by means of an historical computer. I don't think any of those things are true.”

The history chapters cover some of the court's most famous and infamous decisions: The court’s 1831 decision telling white Georgians that they could not simply kick the Cherokee Indians off land that was theirs by treaty with the U.S. government, and President Andrew Jackson’s action to not only disregard the decision but countermand it; the Dred Scott case, which upheld the constitutionality of slavery; the Little Rock school desegregation case in which the court's desegregation orders were enforced by federal troops; and the court's 1944 decision upholding the internment, in barb-wired camps, of all individuals of Japanese descent living on the West Coast — 120,000 people, 70,000 of whom were U.S. citizens.

Breyer, 72, was nominated to the court by President Clinton in 1994. He’s now fifth among the nine justices in length of service. He finds himself in dissent more and more these days on a court that is dominated by a new brand of conservative. But he is undaunted.

Here is the Fresh Air interview with Justice Breyer.

From Peter Henriques via the Billings Gazette:

One of George Washington’s most important and far-reaching decisions made as president revolved around the question of whether he would sign into law a bill establishing a national bank. Alexander Hamilton, his brilliant secretary of the treasury, argued for such an institution and justified his action by seizing on Article I, Section 8, of the Constitution, which endowed Congress with all powers “necessary and proper” to perform tasks assigned to it in the national charter.

In short, Hamilton posited that there were “implied” powers in the Constitution as well as “enumerated” ones. Thomas Jefferson was aghast at such implications and prophesied that for the federal government “to take a single step beyond the boundaries thus specifically drawn is to take possession of a boundless field of power.“

Washington saw it differently and signed Hamilton’s controversial national-bank bill. With a stroke, he endorsed an expansive view of the presidency and made the Constitution a living, open-ended document. The importance of his decision is hard to overstate, for the federal government might have been stillborn had the president rigidly adhered to the letter of the document as urged by Jefferson.

In seeking to reconcile Hamilton and Jefferson (whose views were every bit as divergent as those of the Tea Party and Obama are today), the president eloquently urged forbearance: “I would fain hope that liberal allowances will be made for the political opinions of one another; and instead of those wounding suspicions, and irritating charges there might be mutual forebearances and temporizing yieldings on all sides, without which I do not see how the reins of government are to be managed.”

It seems important to add that Justice Scalia is the longest serving member of the Court, that he resides in McLean, Virginia, and is a devout, traditionalist Catholic uncomfortable with the changes in the Church caused by Vatican II. Scalia prefers the Latin Mass and has driven long distances to parishes which he felt were more in accord with his beliefs.

KRCC is Radio Colorado College: one of many scores of public radio stations rotating weekly through my iTunes folder. Broadcasting on Sundays at 14:00 is The Thomas Jefferson Hour®:

The creator of the program is Clay S. Jenkinson, a nationally acclaimed humanities scholar and award winning first person interpreter of Thomas Jefferson. Clay discusses current American and world events and answers listener questions while in the persona of Jefferson. Clay's answers (as Jefferson) are grounded in his own unique knowledge of the writings and actions of Jefferson; a man of the Enlightenment, a student of human nature and a person of gentlemanly behavior. The host and producer of the program is David Swenson; Grammy nominee, documentary videographer and owner of Makoché Studios. The program is a volunteer effort, funded by The Dakota Institute through The Lewis and Clark Fort Mandan Foundation, a non-profit 501(c)(3) corporation.

Jenkinson describes himself as an historian who initially sided with Justice Marshall in Marbury v. Madison, thought of Jefferson as quirky, mired in the Enlightenment. Now, he has rounded back to the Jeffersonian model, believes that Jefferson would be horrified to learn that the US is operating with a two hundred year old manual, and says we are long overdue for a Constitutional Convention.

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