Retired Supreme Court Justice John Paul Stevens has recently written a book, Six Amendments, in which he proposes changes to the United States Constitution. He agrees that the original Constitution did in fact create a "more perfect Union" than the one that preceded it, as its preamble said it would do. But he argues that "important imperfections in [the Constitution's] text were the product of compromises that were certain to require changes in the future," and he refers specifically to compromises that were included to appease the slave-holding states. The Founding Fathers implicitly acknowledged the likely need for later change to the Constitution, and provided the mechanism for it, in Article V.

One of the most general premises of Justice Stevens' excellent book is that important texts whose function is to establish or regulate an enterprise, though they may necessarily be created and promulgated at one time, cannot be expected to do their job with equal effectiveness for all time. Times change, and language changes. Because of this, texts are continuously called upon for different uses and subject to different interpretations as they weather the vicissitudes of history.

An updating or revision of a foundational text ought to be aimed at aligning words from the past with realities of the present and future. Comparison with another foundational document shows that this has always been true: the Bible has been translated into hundreds of languages, and dozens of translations exist in English alone, all of them reflections of the times in which they were created to serve the needs of contemporaries.

Some changes in the renderings of Biblical passages may simply reflect fashions of usage: consider John 4:4, for example, where the King James Version (1611) has "And he must needs go through Samaria" and Today's New International Version (2005) has "Now he had to go through Samaria."

Other differences suggest that changing times may require different ways to interpret original meanings. Consider the same two versions' renderings of Proverbs 13:1: "A wise son heareth his father's instruction: but a scorner heareth not rebuke." (KJV) and "A wise child heeds a parent's instruction, but a mocker does not respond to rebukes." (TNIV).

English has survived intact as the principal language of the United States since its founding and no one has suggested that a translation of the Constitution is in order. Despite its old-fashioned language in some parts, neither has anyone suggested that the Constitution would benefit from a modern-language makeover. But debate about what various parts of the Constitution mean, and what the founders intended in various parts, have been a feature of American political life since shortly after the ink dried on the original document. It's Justice Stevens' contention that the implementation of the US Constitution has been faulty at several points in our history because of misinterpretations and misapplications of its language, and that his amendments would bring us to a more felicitous relationship with the Founding Father's intentions, as well as with our regulative institutions.

I was curious to examine the language of Justice Stevens' book to get a better handle on what he perceives as the faulty connection between the Constitution's words and today's reality that may have arisen from the way we have interpreted those words. With the benefit of the searchable e-book edition of Six Amendments, I looked for a few key words in pursuit of this. It was surprising to me, initially, that Justice Stevens uses the verb mean and the noun meaning very sparingly throughout his book. He does not use them anywhere in connection with the language of the Constitution or what its drafters meant by anything. 

The verb interpret and its related noun interpretation, by contrast, are found more frequently, and nearly always in the vicinity of the word constitution or amendment  (when he is talking about how a particular amendment, usually one from the Bill of Rights, has been interpreted). On reflection, this disparity in usage is as it should be: the drafters of the Constitution were encoding meaning in language; the consumers of the Constitution — all Americans, from ratification to the present day — are the decoders, and it may be beyond our powers, or even beside the point, to get at an essential meaning of the Constitution; we can only interpret it, and thereby impose our own meaning on it.

Two other verbs and their related nouns occur with considerable frequency in Stevens' book and confirm his practical approach to the problem of constitutional exegesis. He uses the verb construe frequently in the book, again nearly always in relation to the language of the Constitution. Interestingly, the Founding Fathers also use construe  four times in the Constitution, where they give specific instruction about how language in it should or should not be construed.

Finally, Justice Stevens uses the verb intend and the related nouns intent and intention frequently in the book. Occasionally this happens with respect to the intent of the Founding Fathers, but far more frequently, Justice Stevens references the intent of Congress. This is also a very telling use of language and testament to Justice Stevens' instinctive grasp of the purview and limitations of the three branches of government: intent  is the business of Congress, as representatives of the people; administration and execution is the business of the executive, and arbitration and judgment is the job of the judiciary.

Although he was appointed by a Republican president (Gerald Ford), Stevens has been viewed as a liberal justice, and readers of his book will undoubtedly use that label to characterize the arguments he makes about the ways in which he proposes that the Constitution be amended: for example, he argues for the abolition of capital punishment, and for a narrower interpretation of the Second Amendment, which is today interpreted to provide license for easy access to firearms for one and all.

In a larger view, however, Stevens' arguments are extremely conservative: he wants to restore the Constitution and the authority it distributes to its original scope. His amendments would, in his view, check the influences that have diluted the power of the people and that have shifted the burden of legislation from Congress, where it belongs, to courts, which have often been accused of making capricious and unendurable decisions. His proposal to perfect the Constitution uses the same tools that the original Constitution used to bring the United States into being: carefully considered words, as carriers of encoded intentions.


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Orin Hargraves is an independent lexicographer and contributor to numerous dictionaries published in the US, the UK, and Europe. He is also the author of Mighty Fine Words and Smashing Expressions (Oxford), the definitive guide to British and American differences, and Slang Rules! (Merriam-Webster), a practical guide for English learners. In addition to writing the Language Lounge column, Orin also writes for the Macmillan Dictionary Blog. Click here to visit his website. Click here to read more articles by Orin Hargraves.

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Comments from our users:

Monday June 2nd, 6:43 AM
Comment by: David N. (Altamonte Springs, FL)
I do not know that an amendment to the Constitution would be the best way to address this very serious issue. Unfortunately our vocabulary consist of many words representing the same thing (synonyms). As new generations come new words replace old words having a very similar if identical meaning. Lawyers lobby in courts for definition the definition of a particular word and once a law is created a slight change in meaning occurs. This is an educational problem that should be addressed in the school system. Children should be shown how the meaning of life is altered by this practice. Justice Stevens uses the Bible as an example. The Old Testament was written in Hebrew and the New testament was documented in Greek. When I use a concordance to see if the meaning a word is the same I find discrepancy. But yet we accept our translated word as the same. This is an issue that has existed for thousands of years. The only way this will change is through education. It is a very serious problem that is responsible for many of the problems we have in our society today. Its attention deserves an amendment change.
Monday June 2nd, 8:52 AM
Comment by: Orin Hargraves (CO)Visual Thesaurus Contributor
Insightful comment, David. Please note, however, that the Bible analogy is mine, not Justice Stevens'.

I agree that education is vital to maintaining optimal qualities in citizens. I think most people would agree with that, though most would probably not agree on what that education should consist of.
Monday June 2nd, 11:14 AM
Comment by: Westy (Paris, OH)
The main argument lies in that Stevens thinks the original intent of the authors is something that we can not know. Therefore, we need to interpret the Constitution by imposing our own meaning on it. This is the path that most Liberals take.
I think the intent of the authors of the Constitution is very clear for the most part. I say this because most of those authors were also involved in the writing of the constitutions of their own states where there was much less need for compromise.
One could argue that the desire to impose new meaning to the original ideas of the Constitution is really a manifestation of a deep seated belief that "I am smarter than the those authors, and I know what is best for governed people."
Monday June 2nd, 11:54 AM
Comment by: Dan S. (Edina, MN)
Not so insightful, Westy. You make a political argument that is patently biased from the end of the first paragraph. 'Most liberals...' indeed. I thought that the article about the book was quite balanced, considering it's a book review. Almost by definition, a review must incorporate the writers' point of view, thereby making it a kind of personal observation, albeit in this case from an experienced person's point of view. Make of it what you will, but keep in mind when making criticisms, that your own biases will bite you back. I thought Mr. Hargraves made excellent points and I agree with his assessment, for the most part. You should look at his website, as it demonstrates a sense of humor, and a very intellectual slant on how the English language (which is what this is all about, after all) works. Or doesn't.
Monday June 2nd, 12:38 PM
Comment by: Craig J. (Mundelein, IL)
We can come to a good understanding of original intent in the constitution by am honest study of historical documents, incl. letters, Madison's notes from the convention, the shape of pre-existing state constitutions, etc. Only a desire to make the constitution a "living" document leads to willful misunderstanding, and the mistakes associated with that philosophy should not be enshrined by ill-advised codification. Go with original intent without willful distortion and the "problem" that so disturbs Justice Stevens vanishes. Our fault lies not in our constitution, but in ourselves.
Monday June 2nd, 1:09 PM
Comment by: Peter C. (Santa Barbara, CA)
Westy, isn't believing you "know what is best" for *everyone* the very heart of democracy? As well as the right of everyone to differ with you and to express that difference come election time?

And are you really suggesting that all the amendments passed since the Constitution's ratification were merely due to the need of "Liberals" to impose their own meaning on an otherwise perfect document? That's pretty thin ice to tread on, no matter how anti-liberal you are. Check out the 15th, 19th, 24th and 26th amendments just for starters, not to mention the Bill of Rights itself -- some of the phrasing of which Justice Stevens and many others find quite problematic.
Monday June 2nd, 1:25 PM
Comment by: Orin Hargraves (CO)Visual Thesaurus Contributor
Readers may find it helpful to look at a quick review of "Originalism" and its alternatives in this short article: http://mag.uchicago.edu/law-policy-society/original-thinking
Monday June 2nd, 1:36 PM
Comment by: Peter C. (Santa Barbara, CA)
Craig, let's get into our mental helicopters for a moment and look down upon this battleground.

The main reason you and I argue for "original intent" vs. "living document" is because it's convenient for us. It's convenient because of how we want the world to be. For example, you might want the right to bear an AK-47 in all its original glory while I might just as soon see you restricted to bearing a pop gun at a licensed shooting range only (just an example). "Original intent" is convenient for you because it allows you to keep your AK-47 while "living document" is convenient for me because I get the chance to see guns more tightly regulated. And as soon as it becomes convenient to either of us to switch our views, no doubt we'll figure out how to do just that (hopefully without looking too foolish to ourselves).

Now, coming back down to earth, Congress over the past 200+ years has found it convenient to revisit the original intent of the Constitution and eventually to amend it 27 times, including the time when it repealed a prior amendment, thereby bringing Prohibition to a close.

Looks like a "living document" to me….
Monday June 2nd, 3:00 PM
Comment by: David D.
The framers presented the Constitution to the people and the people were not pleased. Since the document had Article V permitting Constitutional life, the first ten amendments were devised. Obviously, the Constitution has never been a static thing; it was unacceptable until some issues were addressed. Other issues would wait. Things change. The "Fathers" could not envision a world wherein women had the vote and slavery was disallowed or airplanes and telephones exist and require regulation. The trick for the courts is to follow the Constitutional framework but not make every issue an incorporated part. The Constitution should guarantee "individual freedom," lesser laws permit or prohibit matters that follow freedom such as abortion and same sex marriage and other controversial issues. My use of "individual freedom" is only offered as an example for the sake of discussion.
Tuesday June 3rd, 2:24 PM
Comment by: Craig J. (Mundelein, IL)
The "living document" idea has to do with making changes to the original intent of the constitution that don't follow the amendment process provided within the document, that are extra-legal or even illegal. No problem regarding the rule of law necessarily arises when an amendment is added to the constitution following the legally defined process, though the rule of law may be damaged by the content following its adoption, as with prohibition . The rule of law is, however, fatally compromised when 5 people in black robes, or a scoff-law president, or an out of control bureaucracy, or an unrestrained congress, or a tolerated criminal element take the law into their own hands and decide on their own either to simply ignore the constitution, or, like Humpty Dumpty, that "a word means whatever I want it to mean" in reading that document and the historical record surrounding it. If words don't mean anything other than what the reader wants them to mean, then linguists are wasting a lot of time and money trying to work out meaning, and we are in a tower of babel waiting for it to collapse in anarchy. Fortunately, words means things, even with linguistic drift, if you take the time to research them, despite all the wishful thinking to the contrary--a hand is still a hand though you insist on calling it a foot. And if everyone now calls it a foot, you can determine the original meaning and understand what was meant in a given time period, unless the Ministry of Information has eradicated the historical record as in "1984". We have not yet attained that glorious state of social perfection, so those who insist on re-writing the constitution extra-legally can still be called to account if we will but take the time to read. Trusting our wise men of the law, and cunning wordsmiths, to tell us something contrary to the plain meaning of words is to deny that the Emperor is naked; we need to see what is real, not what sophisters tell us is real.
Wednesday June 4th, 10:56 AM
Comment by: Jane B. (Winnipeg Canada)Top 10 Commenter
I can see a number of problems with Justice Stevens' proposals for amending the constitution.

First, if you make a specific statement like 'including the death penalty' you do restrict it for all time for all states, at least until another era amends that.

Instead, a law could be used that identifies the uses of the death penalty, that limits those crimes for which it could be used, for example, those involving kidnapping, multiple murders, acts of terrorism (this would have to be defined so that 'scaring folks' isn't included). Those are the ones that come to mind for me. I also think that establishing an 'unless' clause that would deal with the mental ability of the person to understand the consequences should be included.

With the 'right to bear arms' yes, I agree that this is misinterpreted today. However, belonging to a militia would prohibit the ownership of a rifle to be used for hunting. This seems to be too restrictive. It does bother me that in both our countries, our law enforcement officers are outgunned by those who would do harm.

If anyone can agree on amending the constitution so that 'gerrymandering' would be prohibited, I'd like to see it. Amending takes a great leap of co-operation politically. I'm not sure that the US will be there for years!

I think the lack of specificity in the constitution is needed for longevity. Congress is supposed to legislate to keep the country abreast of issues.

I do believe that courts, in the US and Canada, have taken on much of the legislative powers. This I think, is wrong.

There has to be enough room in a constitution for people of varying beliefs to co-exist. One 'size' does not fit all.

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