Talk of gun rights, gun control, and the 2nd amendment has prompted a conversation about whether the constitution is even relevant anymore. This comes up a lot, and for a lot of different reasons, but I think now is as good a time as any to discuss this.
Can we change the constitution?
One school of thought is the idea that the Constitution is a living document, meaning that it changes and adapts with the times. While this normally is used as a justification by people who think the interpretation of the constitution is essentially limitless (minus the inalienable rights to abortion, choice of bathrooms, and the right to “not be discriminated against” of course), I actually tend to agree with the idea of a living document. However, like virtually every other legal document that is considered a “living document,” you have to actually modify that document, through a set procedure that can’t be bypassed. In the constitution, that process was established and it’s called the amendment process. One’s final Will and Testament are living documents in the legal sense. They can continually be updated through a set procedure. This does not mean that I get to reinterpret how much money I inherit because “times have changed.” Allowing such a thing would be totally chaotic. The same is true for the most important living document in America, The Constitution. While I strongly disagree with the recent article in Rolling Stone about repealing the second amendment, I greatly respect that they admit that is the proper way to restrict gun rights.
Should we change the Constitution?
While it is perfectly legal to amend the constitution in ways that violate the original spirit of the document, that may not be a good thing. Why do people want to amend the Constitution? According to David S. Cohen, a constitutional law professor and write of the Rolling Stone article:
Wow! The purpose of the Constitution is to further social justice? The problem here is not that Mr. Cohen is proposing something unconstitutional or illegal. It’s that he doesn’t understand what the Founding Fathers were trying to design when they created the Constitution.
Here in America we have a totally different view of freedom than in many free countries. We believe that freedom is the right to live your life, be who you are, express yourself, and own your self, your labor, and your decisions. This is what the Constitution is designed to protect – Negative Liberties.
What are those? Negative liberties are liberties that don’t impose anything on anyone else. The Constitution doesn’t give them to you, it protects them. Life, Liberty, Property and the Pursuit of Happiness are good examples of negative liberties. The right to property doesn’t mean you have a guaranteed right to own land and the government will provide it for you- it means that if you obtain property without using force, you have the right to keep that property and it can’t be taken away by force. Notice when Conservatives talk about liberties (the right to guns) they mean negative liberties. It means the government can’t take your guns or impede you from getting guns. It doesn’t mean they will give everyone a gun through a government program. Many progressives mean the opposite – the negative right to health care goes without saying; clearly, they’re talking about positive rights. Positive rights, as you probably guessed, are rights that do require that something be taken from other people. Now I know that sounds harsh, and I am not a crazy libertarian who thinks this is never justified. But I will at least acknowledge what it is, and I will not support any positive right that infringes on Constitutionally guaranteed negative rights.
If you don’t believe me, just ask the America’s favorite Constitutional Scholar:
“[The Constitution is] a charter of negative liberties. It says what the states can’t do to you. Says what the federal government can’t do to you but doesn’t say what the federal government or state government must do on your behalf.”
Even he understands what the Constitution is. Of course, he laments this fact. But like Mr. Cohen, he deserves credit for recognizing it.
Why does this matter? When viewed this way, there is little reason to amend the constitution. Here’s a tweet I’ve seen shared by a lot of people I know:
Since zero women & zero people of color weighed in on US constitution when it was written, I assume it may occasionally need a few updates.
— Cameron Esposito (@cameronesposito) June 16, 2016
This is all true. What updates does she think it needs though? What part of the Constitution is written to favor white males that hasn’t already been amended? That last part is key, which is why I didn’t say she was wrong. We’ve updated many things that resulted from this. It seems like the process, as established, works pretty well to accomplish what Ms. Esposito wants. If we seek to keep the Constitution and Bill of Rights as “charters of negative liberties,” it won’t matter if you are white or black, male or female, gay or straight – negative liberties are natural and apply to everyone equally. This is what Antonin Scalia meant when he said that 9 judges that don’t represent America shouldn’t be making policy. They should only ensure one’s negative rights are not being violated. When they get into the territory of guaranteeing positive rights, they are becoming policy makers who weren’t ever elected to that role. You may support the Obergefell decision, but Scalia’s point is pretty salient even if you think it doesn’t apply in that situation.
What the Constitution needs is not change. It needs judges and lawmakers to adhere to it properly as written. At that point, we may find something does indeed need change; but it won’t be to make a list of things we should give people. To get to that point, we need Americans to understand the Constitution and its history better. Maybe Obama can take the lead by again explaining how it works. I won’t hold my breath.