Friday, February 20, 2009


This morning, at the fitnerss center, a friend told me he enjoyed and agreed with my son Bill's comments about the constitution. A nice way of saying he doesn't think much of my opinion.

I'm used to being a dissenter. Several years as the lone conservative on the Michigan Supreme Court taught me that it is better to be right than agreed with.

Anyway, I'm delighted to report that another of my lawyer sons has weighed in. Professor John S. Brennan contributes these cogent thoughts:

"Can't say that I agree with everything, but there are some pretty interesting points. I'm thinking about Great Britain, which has a titular monarchy. Everyone knows it is toothless, but it apparently serves an important function. The power it has looks real, but is superficial, yet the role it plays is rooted in its history and connects its people to its past. Maybe our constitution is a lot like the British monarchy. It doesn't play the same role it did 200+ years ago, but its evolution allows the nation to function in a different world. Nevertheless, its history connects us with ideals of the past that we still value. Changing it would be like Britain getting rid of the Queen --- it's already been done, but it's unthinkable."

No doubt that statement would garner an overwhelming "Amen" from law faculties across our great land. They vehemently oppose an Article V convention to propose amendments, while they strenuosly insist that the constitution is "evolving". Amending the constitution by the concurrence of the people of three fourths of the American states is seen as too risky, while changes made by five out of nine justices deciding a case brought by a single litigant are seen as beneficial or unremarkable.

For too many in academia the constitution is a "living" document which contains broad, adaptable principles meant to guide us and all future generations. The solutions to all problems are supposed to be somehow hidden in the ancient rhetoric of the founding fathers.

Thomas Jefferson didn't think so. In a letter to Thomas Kercheval dated July 11, 1816 he wrote:

"Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, I labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book reading: and this they would say for themselves were they to rise from the dead."

Of course, the living constitution error is not the sole property of either party or either side of the philosophic discourse. Consider this: the constitution requires the President of the United States to be at least 35 years of age.

The life expectancy of a male in 1789 was about 44 years. People married at 18 or 19.
If we consider the constitution merely as an historical statement of principles, which can be applied to the changing circumstance of modern times, it would follow that the 35 year old requirement in the constitution translates to 49 years old in 2008 when life expectancy is more than 72 years.

By that logic, Barack Obama was not old enough to be elected to the White House.

But if it were to be claimed that Mr. Obama was disqualified, who would argue for it and who would oppose it?

No doubt the liberals, who typically favor the evolution of a living constitution, would insist on adhering to the expressed words of the 1789 document, while the conservatives, who usually come down of the side of original intent, might just support constitutional evolution.

My point is simply this: in a government of men rather than of laws, partisanship trumps reason; logic dissipates in the face of advantage. Instead of being the supreme law of the land, the constitution becomes a semantic battleground on which contesting political interests hack at each other.

The renowned nineteenth century jurist, Thomas M. Cooley, stated the rule of construction clearly and forcefully:

"A cardinal rule when dealing with written instruments is that they shall receive an unvarying interpretation, and that their practical construction is to be uniform. A constitution is not to be made to mean one thing at one time, and another at some subseqent time when the circumstances may have so changed as perhaps to make a different rule in the case seem desireable."

Cooley insisted that constitutions do not evolve through judicial decisions over time like the common law, and he concluded that judges who attempted to do so "... would be justly chargeable with reckless disregard of official oath and public duty."

The emails from Bill and John reflect the general state of public opinion on the matter of an Article V convention. The corporate lawyer and the law professor, the minions of both left and right, all seem to agree that the American people are not to be trusted with choosing delegates to an amendatory convention.

The founding fathers would weep. Pity.

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