The Constitution as Written

The creators of the Constitution wanted to create something: a more perfect union. They wanted to establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty for themselves and future generations. So they wrote a constitution. The Constitution should be interpreted according to the goals it was created to accomplish.

Is the Constitution a living document? If you are averse to metaphors, no. The constitution was written on the skin of a dead animal. After 200 years the parchment is probably pretty stiff and dry; it’s not very flexible.

But the drafters of the Constitution wanted to accomplish something for future generations. They understood that there has to be some flexibility in the interpretation and application of the provisions they created.

So they wrote the Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The constitution does not create our rights, nor does it create an exhaustive list of them. For example, the right to privacy is not listed as such, but it is assumed by the Fourth Amendment: the right of the people to be secure in their persons, houses, papers, and effects. The protection against homeowners being required to quarter soldiers in time of peace assumes the same right.

The eighth amendment prohibits “cruel and unusual punishments.” This is an appeal to a community standard. They did not define cruel and unusual. They knew that such standards would change over time. Public flogging is no longer common; it would now be very unusual and considered cruel.

The constitution is a broad and general legal document. It was meant to be interpreted and applied by people who shared a commitment to its goals of liberty and harmony, people of good sense and judgment, people with the flexibility to understand how changes in conditions, attitudes, and knowledge call for changes in the law.

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