Constitutional Consternation, pt. 2

This is the fourth post in a blog deliberation on the current Constitutional issue before us, regarding Senator Hillary Clinton's nomination to be 67th Secretary of State (see below, and previous post). The discussion will bounce between Mobilize staff (whose opinions are their own), and we invite you to join in! Add comments or email your opinion to christina@mobilize.org.

By Chris Golden

And then again perhaps it is too much for my colleague to look beyond his isolated prism of Constitutional interpretation, looking solely and singularly at the text of a document produced, as Justice Holmes said, at the creation whereas its life has been written, defined and molded through the course of the preceding two centuries. If we look at the fundamental premise of the constitutional quandary that we are debating, we find the vision and the framework which guides us in our scholarly pursuit: that the Constitution works. It still works. It has worked. And it will work. We know this from our history, from an examination of our country today and from a belief embedded within the ethos of our citizenry that our Constitution guides us, like a lighthouse does a ship, a beacon does a plane and, perhaps the most apt analogy, as a shepherd does a sheep. But the sheep do not represent us, Americans, as we exist today. Instead, the sheep are reflective of our collective, compounding, history that has seen the Union through times of both peril and prosperity. Each time, we add more to our flock—becoming increasingly diverse and unique. We learn from these additions and as we gain wisdom the shepherd (the Constitution) moves us in the appropriate direction. We do not stay on the same path that we were led to begin on, we move and change the arrangement of our flock of sheep to fit each of the different circumstances that we encounter. When flowing rapids raced through the middle of our flock, dividing us in half and wiping away those who encountered the mighty forces of the water, our fundamentals were weakened, but they were not destroyed. The shepherd allowed extraordinary forces to come and calm the rapids and then to rebuild the flock. When we continued on our path we were different than we were before, in terms of both our flock and our foundation, for that there is no question. It is not simply enough to say that we endured but we endured because we bended and made the changes that we need for preservation and we did so in the most efficient way possible.

Another example is to equate interpreting the Constitution to two people sitting in a room looking at a red piece of paper held up in front of their eyes. Both are asked what color they see. One announces confidently that he sees red. The other, equally confident, declares that he sees purple. How is this possible? While the man seeing red is correct in that he is looking only at the color in front of him, the man seeing purple is equally correct because he examined the totality of the room and saw that the wall behind the paper was blue, making it appear purple in his eyes. Both acknowledge that the paper is red but both see different things.

That is the simple context of the discussion that my esteemed colleague and I are having. One of us sees only the literal interpretation of the third section of Article 1 Section 6. My examination is not limited to the words in the copy of the Constitution that sits on my bed stand but rather to the application of these words to the specific scenario of the appointment of Senator Clinton as Secretary of State. Although I understand, for it is easy to see, my colleague’s literal reading of our Founding Document, I fundamentally disagree with his belief that important contextual elements, namely history, and how it has built the relationship between the Executive and Legislative Branch, and developed the system of presidential appointments, should be ignored.

It is suggested that our debate should be about “what the Constitution really says,” which I find to be ironic for our nation has been built on a debate over the Constitution and its meanings. What it means has become the question before the Supreme Court, indeed every Court, in the land and these decisions have strengthened our country and our Constitution.

It is claimed that there can be no compromise on this issue. But no compromise from what vantage point? Acknowledging that the paper is red while we both see different colors, we are asked to agree that the wall is actually blue, to lend credibility and credence to the other’s argument that he sees purple. It is an issue of no contest. The one who sees red, however, issues an unequivocal objection that he will not agree that the wall is blue because he cannot see it. When the wall returns to a neutral color, so that both men would see red, the one who still sees red objects again, saying that he cannot look up from his paper so he does not know what color the wall is at any point.

What was the framers intent for the Constitution? Was it to only be as it was written in Philadelphia? Was it to be amended at each moment throughout the nation’s history when some element of the document no longer became relevant or some new issue demanded inclusion? (and if so, then why did they make the process of amending purposely difficult?) or did they create a document that was just the beginning, that would guide a young nation through to its prime and that would mold and reflect to fit all circumstances that she would encounter? It is my belief, shared through the chorus of our past history as it is also an invitation to the magnificence of our future, that it is the latter. Our Constitution lives. Our Constitution breathes. Our Constitution molds. Our Constitution grows. Our Constitution upgrades. And as we build Democracy 2.0, our Constitution will build too.

So when we are faced with one of the most minor Constitutional issues, we recognize and accept the premise of its past importance and we acknowledge it using the strength of our principles and the wisdom of our guiding standards, and we mold, and we live, breath and grow. We are not undermining the very purposes of the document itself. We are showing the document’s innate strength and the fortitude of its Writer’s foresight.

Our country has changed through its history and while we accept the premise of some of the provisions within the Constitution as it is currently written, we have reached a point where the premise is no longer applicable, in this situation, at this time. It is not a decision reached not by one, but by totality, and not with malicious objectives, instead those of prudence and expediency. Further, the proposed solution is not one of casualness but one of precedence. Most importantly, the issue at hand is one of atoms and not elements. It is not a freedom that is at stake but a component of a section of an article of a Constitution. If it doesn’t work, and we fix it for this circumstance, does that violate the principles laid out and set forward through the rest of the document, jeopardizing the ability of the Constitution to endure?

My answer is no because I believe it shows a strength larger than just the words in the Constitution itself. My colleague answers yes for reasons that he is previously outlined. This is the issue at hand as we build Democracy 2.0. And that’s the question to be deliberated at the Constitutional Convention.