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Constitution Is Clearly a Living Document

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Is the Constitution a living document?

A 'no' response is to subscribe to the "originalist" perspective. This is generally understood that the Constitution should be interpreted as the framers intended.

Such interpretations are allegedly based on a fundamentalist reading of the Constitution along with other key documents of the period, such as the Federalist Papers.

The originalist perspective in theory is designed to counter what many offer as activist judges legislating from the bench. This is a focus-group-tested canard designed to obfuscate reality by relying on the mythical deity of the framers of the Constitution.

There is no doubting the collective greatness of the framers; they were able to craft a document that surpassed their idealistic imagination.

Charles Pinckney was a great American statesman who played a key role in ratifying the Constitution; he also reportedly owned 300 slaves. Does the originalist perspective suggest that we embrace in totality what Pinckney intended?

Though I would not consider myself on an intellectual par with James Madison, I would say that I have a better understanding of what "We the people of the United States in order to form a more perfect union" looks like in the 21st century than he does.

Madison's "we" was an exclusive club limited to white male landowners. Since the Constitution was ratified in 1788, the ongoing struggle in America has been to redefine the "we" to better reflect those who comprise the nation.

In some cases that monumental responsibility has been left to the courts. Should we consider the gains for women and minorities, allowing them to also drink from the wells of democracy, the work of activist judges legislating from the bench because this was not what the Founding Fathers originally intended?

Perhaps the tragic mistake in much of America's contemporary constitutional interpretation lies in it being outcome-based -- that is to suggest how one feels about a particular issue determine one's constitutional perspective.

Supporters of Proposition 8 felt former federal Judge Vaughn Walker had subverted their will. Walker ruled the controversial initiative that banned gay marriage was unconstitutional.

The majority (albeit small) felt their will prohibiting same-gender marriage trumped other considerations. If that were true, why have a Constitution?

Moreover, their reliance on the Constitution focuses more on the 10th Amendment, which states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Ironically, it is the contemporary dependence on the 10th Amendment that makes the strongest case for the Constitution being a living document.

The framers of the Constitution punted on the most pressing issue of their day -- slavery. The result nearly tore the country asunder.

But after the Civil War, the nation survived, spawning the 13th, 14th and 15th Amendments to the Constitution. The passage of the 14th Amendment's due process and equal protection clause diminished the power of the 10th Amendment.

Those of us who believe the Constitution is a living document do not believe the nation's most sacred text should be interpreted to fit a particular policy outcome. Support for constitutional principles could have one opposing an outcome they back.

Nor do we believe that the Constitution should be confined to the world view of a group of men whose last survivor died 176 years ago.

Originalists argue, rightfully so, same-sex marriage is not found in the Constitution, while ignoring the due process and equal protection that appears prominently.

The Constitution must be a living document if it is to represent those living today. The flaw in its inception would be its original intent excluded so many people.

With all we know, why would anyone advocate that we revert to that?

Byron Williams is an Oakland pastor and syndicated columnist. He is the author of the forthcoming book: 1963: The Year of Hope and Hostility. E-mail him at byron@byronspeaks.com or visit the website 1963hopeandhostility.com

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