Myth: The government violates the plain meaning of the constitution.
Fact: The constitution is meant to be general, not specific, and is therefore open to
Being simple and being specific are not the same thing. Our constitution
is the former, but not the latter. It is therefore open to many interpretations
-- much to the frustration of those who only see their version of its "plain
meaning". But this simplicity is as it should be, because the constitution
is meant to describe general principles of governance, not specific laws.
The supermajority requirement to pass amendments also makes it virtually
impossible for the public to try making the constitution into a more specific
set of laws. Also, increasing the rate of amendments would politicize the
constitutional process, and transfer the task of interpreting the constitution
from the nation's judicial experts to the lay public.
What exactly comprises the "plain meaning" of the constitution?
A wit once described it as "whatever your personal opinion happens
Of course, everyone has different opinions. Not surprisingly, most
people believe that their personal opinion is the correct one, and it is
always those other people who misinterpret, twist, distort, violate
and shred the constitution.
The above observation would suggest, then, that there is real value
in a democratic interpretation of the constitution. After all, wouldn't
the "plain meaning" of the constitution be the interpretation
that is apparent to the most people?
Unfortunately, interpreting the constitution is a bit more complicated
than this. The problem is that the constitution's simplicity invites multiple
interpretations. This may seem nonsensical at first, but it is a phenomenon
that legal scholars know well. To understand why, consider the difference
between the following two sentences:
Sentence 1: Rachel wants you to bring her an apple.
Sentence 2: Rachel wants you to bring her an apple from the
corner grocery store, but only if they are fresh and only if they are on
Both of these sentences contain varying degrees of simplicity and specificity.
The first sentence is simpler to understand than the second, and its meaning
more obvious. But the second sentence is actually more specific, and limits
your actions more than the first. And the way it does this is by using
If the purpose of the constitution was to limit the government's behavior
in highly specific ways, its language should have been specific, not simple.
That is, it should have elaborated on specific limitations using entire
paragraphs, defining its terms carefully and considering every possible
exception and alternative. But the constitution does not do this; it is
a brutally simple document. In fact, some of its amendments are no longer
than one sentence!
Did the Founders make a mistake? What is the point in having a constitution
that does not specify what it intends to limit? What is the point in establishing
a set of guidelines that invite multiple interpretations and endless argument?
Actually, there is an enormous benefit. In a constantly evolving and
changing society, highly specific language can also serve as a straight-jacket.
For example, suppose that the Founders had included the following very
specific amendment in the constitution:
"No innocent person shall be cut with a knife and allowed to bleed."
This might have made excellent sense in the 18th century,
when the constitutional authors were aware of only one such scenario: a
criminal attack. However, as medical science progressed in America, medical
doctors pioneered life-saving surgical techniques that would have indeed
violated this constitutional amendment.
Specific laws are better left to Congressional legislation; and such
laws should need only a simple majority to pass. The constitution is better
suited for stating the general principles of governance, and because these
are so important, they should require a supermajority to pass. Any attempt
to specify the language of the Constitution runs the risk of straight-jacketing
society, and correcting it will be all the more difficult because of the
Some conservatives argue that the constitution should be more
specific about limiting the federal government's powers, and that if change
occurs in society, we should change the constitution through the amendment
process. (And if the supermajority requirement slows down constitutional
change, well, they won't cry too many tears over it!)
There are three objections to this proposal. The first is that it politicizes
the constitutional process. Currently, justices can review laws calmly
and rationally for their consitutionality without worrying about the shifting winds of public opinion.
But allowing the people's representatives to vote more often on what is constitutional
would turn the constitution into a political football. Similar arguments
have been made in favor of keeping the Federal Reserve Board independent.
The value of such a policy can be seen in Britain, where the central bank
was disastrously politicized after it was taken under direct control of
The second objection is that the people do not have the deep knowledge
of law, constitutional or otherwise, that justices have. By forcing the
constitution to be both specific and frequently amended, conservatives
would transfer the task of interpreting the constitution from the nation's
experts to a public that is, unfortunately, semi-literate in legal matters.
Again, the Federal Reserve is an excellent analogy. Most Americans have
no idea of the difference between Keynesian and Monetarist policy -- a
powerful argument for not letting them vote specifically and directly on
The third is that the supermajority requirement works at cross-purposes
with the specificity requirement. Suppose we passed a very specific but
enormous amendment that severely limits federal government regulation.
How would this apply to pollution? Seventy percent of all Americans identify
themselves as pro-environmentalist. It is conceivable that they would seek
to ban "bad" forms of regulation, while encouraging "good" forms of regulation
like banning pollution. But our society pollutes the environment
with thousands of chemicals in thousands of ways. And not all of these
emissions are bad. Carbon dioxide is a greenhouse gas -- but it's also a
byproduct of human metabolism, in the very air that we exhale. So our
super-specific constitution must list thousands of chemicals and pollution methods,
identifying which ones are acceptable and which ones are not. Furthermore,
industry is constantly inventing new chemicals and new ways to
pollute. And scientists are constantly changing and adding to their
assessment of environmental dangers. It's easy to see that a supermajority
requirement is ill-suited to respond quickly and efficiently to such a
rapidly changing, enormous and complex issue.
This example highlights another problem with over-specifying the constitutional
role of government. How can everyone in Congress and all the 50 state legislatures
become experts on the potential dangers of thousands of chemicals? The
answer is, of course, that they can't. But the task of educating legislators becomes easier
when only Congress has to vote on the issue, and only half of the representatives
need to be convinced, not two-thirds. Ideally, this reduced number of legislators
should be advised on environmental issues by experts from business, science,
environmental and citizen groups. Their conflicting expert opinions should
be assessed by the government's own experts, after which legislation is
voted upon. And if a particular interest group feels that the resulting law
violates their constitutional rights, they have the option
of testing its constitutionality in the courts.
No doubt that some aspects of the Supreme Court need reforming. Many
liberals believe that the judicial branch has gone too far in the direction
of representative democracy; by giving Supreme Court justices lifetime
tenure, they become largely unanswerable to the people. The most a president
and Senate can do is be careful in nominating and confirming them; but
this vetting process is not foolproof. It is often difficult to predict
how a justice will actually vote on the bench, freed at last from all political
restraints. For this reason, many liberals call for the election of justices,
albeit over long terms (say, seven years) to avoid overly politicizing
Yet surely the underlying structure of our judicial system is correct.
The constitution states general principles of governance and is amended by a
supermajority of Congressional and state legislators. Meanwhile, more specific
laws are passed by a simple majority in Congress, allowing society to respond
quickly to changing circumstances, and are reviewed for constitutionality
by an independent and expert Supreme Court. How can this system be fundamentally
Return to Overview