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Monday, September 17, 2018

A Day in the Life of the Constitution

They are words that should be very familiar to all Americans. Most of us learned them—memorized them—in civics class in junior high. They are the opening words of the guiding document of American freedom: the US Constitution.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Today is Constitution Day. Oddly, we take a holiday on July 4th to celebrate our Declaration of Independence. But this day gets minimal notice despite the significance of the Constitution in our daily lives.

The contents of this historic document have come under scrutiny a lot in recent days during the committee hearings for Judge Brett Kavanaugh. The politics of those hearings were brutal and ugly. A committee vote on his confirmation should come this week.

A major issue and point of disagreement for many is the term “originalist” as it relates to the Constitution. Judge Kavanaugh describes himself as an originalist. An excellent article explaining the variant views on interpretation is found at the website. It is titled, “On Originalism in Constitutional Interpretation.” The article is written by Steven G. Calabresi, a Clayton J. and Henry R. Barber Professor of Law at the Northwestern Pritzker School of Law.

Kavanaugh’s view of interpretation contrasts with those who hold the Living Constitutionalist viewpoint. To the judge, the constitutional text ought to be given the original public meaning that it would have had at the time that it became law. This can be discerned in various ways and from different documents. As the article cited explains, “It can also be inferred from the background legal events and public debate that gave rise to a constitutional provision.”

In contrast, Calabresi tells us that “living constitutionalists believe that the meaning of the constitutional text changes over time, as social attitudes change, even without the adoption of a formal constitutional amendment.” He then proceeds to offer ten purposes behind our US Constitution. It is Calabresi’s contention that all ten purposes favor the originalist viewpoint.

The consequences of the difference in viewpoints matters. Depending on your personal perspective, the judge or justice you select can send interpretation of law in very different directions. And, of course, such interpretation can impact social policy. I tend to side with the originalists.

Getting the law right is important. But it can also get in the way of living rightly. Jesus of Nazareth gives us a clear example in Mark, Chapter 7, verses 5-13 (God's Word translation).

The Pharisees and the experts in Moses’ teachings asked Jesus, “Why don’t your disciples follow the traditions taught by our ancestors? They are unclean because they don’t wash their hands before they eat!”

Jesus told them, “Isaiah was right when he prophesied about you hypocrites in Scripture:
‘These people honor me with their lips, but their hearts are far from me. Their worship of me is pointless, because their teachings are rules made by humans.’"

“You abandon the commandments of God to follow human traditions.” He added, “You have no trouble rejecting the commandments of God in order to keep your own traditions!…Because of your traditions you have destroyed the authority of God’s word. And you do many other things like that.”

Jesus directly challenged the way these people treated the law. What was meant to lead to righteousness had become corrupted. A heart change was needed.

We need our Supreme Court to ensure that our Constitution remains the powerful guiding document it was meant to be. While it never mentions God, the wise justice knows that true wisdom to interpret all of life needs wisdom from above. It is the right heart in legal matters that gives us justice.

Hopefully, we have the right person in Brett Kavanaugh.

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