A Living Constitution is for the Living

Thomas Jefferson is reported to have written the following for the opening of the United States Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness." Today, it would be very difficult to find a U.S. citizen who disagrees with that statement, however, that does not necessarily mean that all American people interpret it the way Jefferson did.

Jefferson grew up in a society, in which some people could be bought and sold at auctions as properties. What made it legally possible for other people to own them was the color of their skins. Thomas Jefferson himself owned over 200 human properties, and did not come close to freeing any of them all his life. "All men are created equal," he would say, and he wouldn’t think that enslaving other men (and women, and children) constituted an inconsistency with that statement. Perhaps, what Jefferson had in mind when making that statement was, "All white men are created equal." But, too bad, he did not phrase it this way. Maybe he thought that it was so obvious that no one would interpret the word ‘men’ in a broader sense. Maybe… We do not know.

Still, his omission of the word did not do any harm to the prevalent idea of slavery. Negroes were bought, sold, raped, tortured, and in a lot of occasions, they were separated from their families when a transfer of ownership did not include their loved ones.

Such were the prevalent values of the society the Founders of the United States grew up and lived in. It was the same values that made the judges of 1856² tell to Dred Scott’s face that he was actually a property, and that his master could not be deprived of his property without the due process of law under the Fifth Amendment. In 1896, the justices of the same Court declared³ that racial segregation was separate, but equal.

It took centuries before the majority of white men to understand that slavery was wrong. All this, in fact, is a repetition of what Arthur Schopenhauer is reported to have said: "All truth passes through three stages. First, it is ridiculed. Second, it is violently opposed. Third, it is accepted as being self-evident."

The truth is, the Framers did not write a color-blind Constitution. Nor did they live (or care to live) in a color-blind society. It was self-evident to them that the Negroes were not to be given any rights. They did not feel a need to state the obvious. Nobody does that. As far as constıtutıonal rights were concerned, Negroes were totally out of the equation. Not that the Framers excluded them when writing the Constitution. It is just that they were not considered citizens (or, in a sense, humans), and thus their rights were irrelevant pretty much like animal rights. As of today, there is still not a sentence in the Bill of Rights like ‘Black people should not be enslaved”, and there is not a need for it. However, bringing back slavery is never an issue. That is simply because people do not perceive things the same way any more, and that makes all the difference: the mindset (the perceiver), intentionally or unintentionally, defines what the text (the perceived) means.

In his book, Liberty: Interpreting our Democratic Constitution, Justice Stephen Breyer says, "As history made clear, the original Constitution was insufficient. It did not include a majority of the nation within its "democratic community." It took a civil war and eighty years of racial segregation before the slaves and their descendants could begin to think of the Constitution as theirs.’⁴ Fair enough. But the fact is, the Constitution was not meant to include the Negroes in the first place. To emphasis the very same point, twentieth century American rapper Tupac Shakur, for example, cried out in a song, ‘America’s freedom was not meant for me.’ I find his statement more clearly put than Breyer’s.

The way people perceive things change only gradually. However, when we look at the whole picture today, we see that the overall change is dramatic. History of thought has always witnessed a constant change, for good and bad. There is no reason to assume that neither 1787 nor 2006 is the point for it all to stop. So far as it is ‘We the People,’ change will prevail. Justice Breyer says that "the judge should recognize that the Constitution will apply to "new subject matter... with which the framers were not familiar.""⁵ There is no reason why freedom should not be included in the "new subject matter" that Justice Breyer says the framers "were not familiar" with. That's because the idea of freedom the framers were familiar with did exclude people who were not like them, because race, gender, and ethnicity played a major role in their thinking. Today, such an idea of freedom would be discriminatory, undemocratic, inhuman, and, ironically, un-American!

Things change, people resist.

Justice Scalia has a point when he says the following: ‘The originalist, if he does not have all the answers, has many of them... For the evolutionist, on the other hand, every question is an open question, every day a new day.’⁶

Very true indeed.

For progressives, every day is a new day – and rightly so.



¹ Breyer, Stephen, (2005). Active Liberty: Interpreting our Democratic Constitution (7th ed.). New York: Alfred A. Knopf. 25.

² Dred v. Scott, 60 U.S. 393 (1856)

³ Plessy v. Ferguson, 60 U.S. 393 (1856)

⁴ Breyer 32.

⁵ Breyer 18.

⁶Scalia, Antonin, (1997). A Matter of Interpretation: Federal Courts and the Law (1tsted.). Princeton University Press. 46.