I had a real "Eureka!" moment this morning when I was waking up. For years, I have been wrestling with the contention advanced by people like US Supreme Court Justice Antonin Scalia and right-wing commentator Pat Buchanan: that the Founding Fathers, in writing and adopting our Constitution, had certain very clear meanings in mind, and that we therefore must base our interpretation of the Constitution on those meanings, i.e., we must obey the Founding Fathers' "original intent" in deciding what the Constitution means today.
I have always held that could not be true. As a matter of sheer expediency, it would be impossible to do so. The world in 1789 was not filled with airplanes and computers and space satellites and men like Scalia and Buchanan themselves (and women) who have the vote. Since it's no longer the world of 1789, it can no longer be the Constitution of 1789, and the Founders were wise enough to know that. We wouldn't need a Supreme Court at all if the Constitution's meaning were plain and undeniable in the way people like Scalia and Buchanan make it sound.
However, since none of the Founders is on the record as saying flat out that the meaning of the Constitution is designed to expand as the world around us changes, the "strict constructionists" like Scalia and Buchanan have been able to maintain their position.
My "Eureka!" moment? Realizing that the meaning of words can change over time as a natural, organic thing--and that everyone who has ever looked up a word in a dictionary knows it. Therefore, the Founders knew it, too. The specific word in my case was "nice." When "nice" first came into regular use, it was not a bland compliment. It meant "trivial and petty." Examining great literature from the days of Shakespeare forward will reveal the natural evolution of the word's meaning and usage. And the Founders, well-educated men all, knew this body of literature.
Further, one of the greatest problems of studying history is trying to figure out what "everyday" people believed about their lives. Until relatively recently, most people didn't record the things that shaped their daily attitudes. They just lived their lives. Modern technology and the spread of education have made it possible for us both to leave records of our thoughts on such subjects and to wonder what our ancestors thought about them in their turn. I doubt that a concept like "original intent" even crept into our ancestors' conscious thinking. It would have been utterly foreign to their actual, real-world experiences. They wouldn't have to discuss it because its opposite was axiomatic. That the meaning of words changes over time was a given. It didn't need to be explained because everyone already knew it was true.
Recognizing this also puts the lie to the claim advanced by some that the Founders intended the Constitution to change only through the process of formal amendment [which is something that self-styled "clever" people have been braying about in letters to the Editor of the Omaha World-Herald of late--Ed.]. Yes, they made amending the Constitution a difficult process, both time-consuming and requiring an extraordinary level of societal consensus. But that was to keep the document from getting cluttered (the way most state constitutions have) with trivia or other matters of limited scope and interest.
The Constitution was designed to stand, as clean and uncluttered as possible, as our society's most basic expression of its governmental organization. It was written in general terms because the Founders knew they couldn't anticipate every possible permutation of every possible issue they addressed. They knew the particulars would be sorted out as the need arose. They came from a "common law" tradition, which by definition says law evolves incrementally as judges apply general principles to specific facts--or, in modern terms, the judges make the law [again, it's impermissible "activism" only when you disagree with the specific conclusion--Ed.] based on their understanding of societal consensus within the framework. In other words, it's inherently flexible.
The Founders didn't expressly adopt "original intent" because they knew it wouldn't work in a thriving society. On the other hand, the Founders didn't specifically deny "original intent" because it never occurred to them that they needed to.
I understand why the strict constructionists want to hang onto some rock-steady, solid and unchanging view of the Constitution and its meaning. It gives them comfort in a world filled with an ever-increasing pace of change--change that frequently is frightening. But it's a losing proposition. It flies in the face of reality on all levels, including science. The Founders, men of the Enlightenment all, knew the science of the day as well as they knew literature. All they had to do was look around to see physical evidence that everything changes over time. Fossilized seashells found on land were known to men of science in those days. They didn't know why the fossils were no longer under water, of course [heck, many scientists "pooh-poohed" plate tectonics as recently as 40 years ago--Ed.], but they knew that something had changed, otherwise there would be no reason for the remnants of aquatic creatures to be found far from the oceans in which they lived and died.
Ironically, "change" is the only constant. All of life is change, and it always has been--even before Darwin forced the world to face up to it. "Adapt or die," we say . . . and with good reason. Everyone and everything does die, eventually. But everyone and everything that hasn't adapted has died too soon when compared to everyone and everything that has.
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