A teachable moment on the Constitution is being muddied by the extreme, lopsided view being presented to Congress by Tea Partiers, led by U.S. Rep. Michele Bachmann.
The organization I lead, the American Constitution Society for Law and Policy (ACS), believes that this moment offers a tremendous opportunity to ensure that lawmakers, and all Americans, become more familiar with the genius and richness of our Constitution. No one group or person has or should have the ability to corner the market on constitutional interpretation.
But, I note in this Politico article, Bachmann has dubbed her classes "Conservative Constitutional Seminars," which suggests she is not working to foster a comprehensive understanding of the Constitution. She seems instead to be advancing an interpretive approach that is consistent with the political views of Tea Party Caucus members and a generally narrow, skewed view of the Constitution.
That cramped version of the Constitution envisions a founding document frozen in time and incapable of applying to today's society, and the many changes our nation has gone through. Indeed this week's first conservative constitution class featured Justice Antonin Scalia, a leading proponent of "originalism," a philosophy that says the Constitution should be read and applied in precisely the manner as the framers would intend, without considering the changes to our society. Originalism is a result-oriented approach to judging that typically allows a judge to reach right-wing results antithetical to the values held by our society.
That approach is more than just wrong-headed. It leads to faulty conclusions, such as those expressed recently by Justice Scalia that the 14th Amendment's Equal Protection Clause does not bar discrimination against women. Such an approach to constitutional interpretation fails to take into account changes in our society, technological, cultural and otherwise, and expects us to be mind-readers when it comes to determining what the framers would have thought about complex issues that that did not address, such as wiretapping, equality for all people, an integral provision added after the Civil War.Instead, as the book Keeping Faith with the Constitution, authored by three leading constitutional scholars, points out,
"Our Constitution was not intended to supply a ready answer to every problem or every question that might arise. The Framers memorialized our basic principles of government with broad language whose application to future cases and controversies would be determined not by a mechanical formula but by an ongoing process of interpretation."
In letters to Rep. Bachmann and House Speaker John Boehner, I urged the lawmakers to broaden the discussion on our founding document, and offered the access to ACS experts and materials. As I wrote to Rep. Bachmann, "These classes represent an important opportunity to ensure that Members of Congress and all Americans are familiar with the U.S. Constitution in its entirety." We hope they will take us up on our offer.