Constitutional Clarity

Two articles to consider, and being the administration flak that I am, I can spin them into a pro-Miers post.

The first is from Hillsdale College's "Imprimis" magazine. I hope everybody is reading this, subscriptions are free.

This month it is George Will, last month was Stephen Markman, Justice on the Michigan Supreme Court. Justice Markman makes a great point about the Constitution: "It ain't for all dem fancy, wingtipped lawyers and perfessers" (I paraphrase a bit...). The serious point is that it's not legalese, that every literate American can understand it. And that the biggest treat to understanding might be penumbras and emanations.

Myth or Misconception 5: The Constitution is a document for lawyers and judges.

The Constitution was written for those in whose name it was cast, “we the people.” It is a relatively short document, and it is generally straightforward and clear-cut. With only a few exceptions, there is an absence of legalese or technical terms. While the contemporary constitutional debate has focused overwhelmingly on a few broad phrases of the Constitution such as “due process” and “equal protection,” the overwhelming part of this document specifies, for example, that a member of the House of Representatives must be 25 years of age, seven years a citizen, and an inhabitant of the state from which he is chosen; that a bill becomes a law when approved by both Houses and signed by the president, etc. One willing to invest just a bit more time in understanding the Constitution need only peruse The Federalist Papers to see what Madison, Hamilton or Jay had to say about its provisions to a popular audience in the late-18th century.

One reason I believe that the Constitution, as well as our laws generally, should be interpreted according to the straightforward meaning of their language, is to maintain the law as an institution that belongs to all of the people, and not merely to judges and lawyers. Let me give you an illustration: One creative constitutional scholar has said that the requirement that the president shall be at least 35 years of age really means that a president must have the maturity of a person who was 35 back in 1789 when the Constitution was written. That age today, opines this scholar, might be 30 or 32 or 40 or 42. The problem is that whenever a word or phrase of the Constitution is interpreted in such a “creative” fashion, the Constitution—and the law in general—becomes less accessible and less comprehensible to ordinary citizens, and more the exclusive province of attorneys who are trained in knowing such things as that “35” does not always mean “35.”

The second article is everybody's favorite Senator, Arlen Spector, suggesting that "Gosh durn it, that constitution stuff is purdy near impossible for some ol' Texas Gal to learn" (again, I paraphrase...)

Sen. Arlen Specter, R-Pa., said President Bush's pick to replace retiring Justice Sandra Day O'Connor must show she can handle complicated legal issues and has not cut deals with the White House to overturn Roe v. Wade.

I rush to Ms. Miers defense in some ways as a devil's advocate. She's not an obvious choice, but there may be a lot more to this "non-elitist" meme than many of her opponents are letting on.

SCOTUS Posted by jk at October 9, 2005 3:39 PM