Monday, 2 April 2012

Why read the minds of the Framers when we can read what they wrote?

In the midst of a rant against Team Red, James Fallows makes the following observation:

As with equal representation for all states in the Senate, real-world circumstances have changed so dramatically in the past 230+ years that the practical-minded drafters of the Constitution would never have suggested that the details of their scheme should be applied, unaltered, in the 21st century. [italics mine]

For the sake of argument, let’s assume that the practical-minded drafters of the Constitution didn’t think that every state should be entitled to equal representation in the Senate forever. If only there had been some way to include provisions in the constitution that expired, could be amended, or only applied to some states—for example, the Constitution could have still guaranteed equal numbers of Senators for each state that existed at the time of ratification, which would have still effected the Great Compromise between large and small states, but might have made no such guarantee for future states, the admission of which were clearly anticipated in the text. That they didn’t suggests that they thought that equal representation of the states in the Senate to be an important value of the constitutional order they established.

And, of course, the Framers designed the Constitution’s scheme to be alterable. If, sometime in the last 230 years, societal consensus had evolved to produce a more Hamiltonian view of the powers of the federal government vis à vis the states, surely the Constitution could have been amended to provide for that consensus to be enshrined into it. The fact the Constitution has laid effectively dormant for 40 years speaks more to the fact judicial whims have evolved to “constitutionalize” changes that in the past would be done by amendment than some inherent difficulty in amending the Constitution in the first place.