Reading the Constitution
Dateline: August 09, 2000
"READING THE CONSTITUTION" > Page 1 , 2 , 3 , 4 , 5
Concepts vs. Conceptions
For this reason, you offer specific conceptions of unfairness as examples. Those conceptions do not exhaust all possibilities, and indeed any of the examples may be incorrect and you may change your mind later. Thus, the conceptions used by your children may eventually differ from yours. This is a necessary consequence of their being mature, thinking individuals instead of robots who simply follow your orders.
So the question is: were the authors of the Constitution trying to provide concepts to guide us, or conceptions to rule us?
Did they write about a concept of a citizen, or about their conception of a citizen? Dred Scott's fate as a freeman or slave was decided by that distinction. Do you think the choice made was correct?
Were the authors attempting to prohibit a concept of "cruel and unusual punishment," or their conception of "cruel and unusual punishment?" The fate of the death penalty - and anyone condemned to any sort of punishment - rests with that distinction.
For Mr. Dworkin, myself and others, interpretation of the Constitution should proceed from the highest level of philosophical abstraction, not the limited imaginations and hidden prejudices of the original authors. History and the Constitution teach clearly that these authors had high ideals which they were not always able to put into practice - after all, they were only human. But it is those ideals we should focus on primarily when interpreting the Constitution, not their flawed, human attempts to realize their ideals.
So what if these lawmakers debated the merits of the equal protection clause before a segregated audience? What should count is underlying principle: equal concern and respect for all citizens. Thus we have the Court's 1954 banning of school segregation in Brown v. Board of Education.
So what if states routinely enforced anti-sodomy laws in 1868, at the time that the 14th Amendment was ratified? Only prejudice and a concern for social domination by some groups keeps them in place today. The fact of the matter is, historical practice should not be allowed to block the inherent moral argument.
Religious Freedom
The implications for the future of religious freedom - and in particular, the separation of church and state - should be growing more clear now. Many argue that the words "separation of church and state" do not appear in the Constitution - and they are right.
These same may also argue that none of the founders ever specifically argued for the strict form of separation which has been more prevalent in the past few decades - and they have a point. It's not rock-solid argument, but it is undeniable that the politicians of the time did not seek the sort of separation which so many atheists and theists find indispensable today.
But I won't argue against the particulars of their case here because, as I have demonstrated above, they are quite missing the point. What we must ask ourselves is: were the authors of the Constitution trying to provide us with a concept of religious freedom for all citizens, or a particular conception of religious freedom?
Textualists only focus on the conception of religious freedom which the authors used. For most, this means what essentially amounts to de facto Protestant Christian theocracy, where one religious group dominates and all others have second-class status.
I, and others, are convinced that what the founders were trying to provide us with a concept of religious freedom - a concept where the most possible people have the most possible religious freedom while still balancing the needs of public order. At the time, this didn't require a very broad conception of freedom because almost everyone was a Protestant Christian.
So what if the states routinely offered explicit support for Christian churches and politicians routinely praised Christianity? What should count for us is the underlying principle of religious liberty for all, no matter what their religion, creed or denomination. Or lack thereof. Thus we have the Court's prohibition of organized prayer in 1962 and official Bible readings in 1963.
This leads us to a separation of church and state, because real freedom of religion also necessarily requires freedom from religion - specifically, the freedom from the rules, dictates and ideologies of other people's religions.
Constitution vs. Democracy
One problem at the time was that decisions about religious freedom were left almost exclusively to the legislatures. This is an important point, because today textualists argue that these matters should be decided by democratically elected representatives, not judges. But should decisions in such matters always be left to legislatures?
To be quite honest, no. Decisions about the rights against the government and against majority ideas should not, in all fairness, be left to the majority itself. The political theory underlying the United States is Constitutionalism, and this is the theory that the majority must be restrained to protect civil, social and political rights.
One may disagree with this policy, but it is nevertheless the one we have - and it means that decisions about how far laws may go will sometimes be decided by courts, not majority-elected and majority-voting legislatures.
Today, then, the concept of religious freedom requires a broader conception of religious freedom. We have many more religious minorities in America, and those minority groups are larger and more self-aware than ever before. This is a trend that will continue - and it cannot exist peacefully with a de facto Protestant theocracy.
Today, the concept of maximal religious freedom requires a conception that includes a strict separation of church and state. That is why, when there is discussion of how the Constitution is supposed to be interpreted, it's important to pay attention and make the argument for allowing judges wider ability to rule based upon concepts of liberty, not just 18th Century conceptions of liberty. Your liberties - of privacy, citizenship, and religion - depend upon it.
Go back to read the introduction to and summary of the arguments in this article...
Next Page > Introduction & Summary
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