A Monthly Column for Word Lovers
A More Perfect Document
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.