David Barton. What is a Constitution?

What is Constitutional?


The Constitution is a simple and straightforward document; it is easy to understand and can be read in twenty minutes. Yet today we are regularly told that it is complicated and only those which the highest legal acumen – such as judges and attorneys – can interpret it. But this is not true.

The Constitution is so easy to understand that for decades after the American founding, all school students, including elementary ones, regularly took an annual written test on the Constitution’s content. And popular student texts included the 1828 Catechism on the Constitution by Arthur Stansbury – a work for elementary students.

Even the overall nature of the Federalist Papers testifies to the simplicity of the Constitution. Those papers were written in 1787-1788 by three prominent Founding Fathers, James Madison, Alexander Hamilton, and John Jay. And contrary to the modern perception, the Federalist Papers are not filled with complicated and intricate legal arguments that only judges and attorneys can understand but rather were articles written in local New York newspapers to explain to the average farmer of 1787 every clause of the Constitution and just how the new government would operate.

Despite the fact that elementary students regularly mastered the Constitution, and that its most complex arguments were understood by New York farmers, today it is largely an unknown document. In fact, the best known Amendment in the Constitution is the First Amendment; yet only 1 in 1,000 citizens can name its five basic guarantees (e.g., freedom of religion, press, speech, assembly, and petition). [1] Citizens no longer know the Constitution; and a major factor suppressing its general public knowledge is the advancement in recent decades of a new legal theory regarding constitutional interpretation.

For the Constitution’s first century and a half, the uncomplicated philosophy used to interpret it was called Originalism, Original Intent, or Textualism – the simple belief that the Constitution means just what it says. As President Thomas Jefferson explained to Supreme Court Justice William Johnson:

On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed. [2]

So, under Originalism and Original Intent, when the Constitution says that only the U. S. House of Representatives can initiate a tax increase, what it really means is that only the U. S. House of Representatives can initiate a tax increase – not the president, not the Senate, not the courts, but only the House of Representatives. Simple! And when the First Amendment says that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof,” what it means is that only Congress is restricted – not that a student cannot say a prayer at school, for “Congress” does not mean “a student.” Again, very simple! In short, the Constitution was written in plain English and meant just what it said; and its explicit language, along with its six fundamental undergirding principles, could be easily understood even by elementary students. (For more about the six fundamental principles incorporated in the Constitution, see the article on American Exceptionalism.)

This Original Intent approach predominated for most of America’s history until an alternative system was introduced, known as the Living Constitution, Pragmatism, or Positivism. This philosophy is characterized by five major theses:

  1. There are no objective, God-given standards of law, or if there are, they are irrelevant to the modern legal system.
  2. Since God is not the author of law, the author of law must be man; in other words, the law is law simply because the highest human authority, the state, has said it is law and is able to back it up by force.
  3. Since man and society evolve, therefore law must evolve as well.
  4. Judges, through their decisions, guide the evolution of law.
  5. To study law, get at the original sources of law – the decisions of judges. [3]

This philosophy was first introduced when Harvard law school dean Christopher Columbus Langdell applied Darwin’s premise of evolution to jurisprudence. Langdell reasoned that since man evolved, then laws must also evolve, and that judges rather than the people should guide the evolution of the law and the Constitution. Because continual change is the centerpiece of the evolutionary approach, any belief in fixed absolutes  (such as the Inalienable Rights listed in the Bill of Rights, or the Moral Law or Common Law of the Seventh Amendment) were summarily dismissed; the only parts retained were those deemed by judges to have “pragmatic” value under the new evolutionary philosophy.

Roscoe Pound, a professor at four different law schools as well as the dean of the law schools at Harvard and the University of Nebraska, helped institutionalize this new belief. He taught students that law and the Constitution must evolve to become a sociological force rather than just a legal force, and that social change must be taken out of the hands of the people and placed into the hands of unelected judges.

When students trained under this philosophy eventually were placed on the Supreme Court, they quickly sought to turn it into a sociological rather than a legal body. For example, Justice Oliver Wendell Holmes, Jr. announced:

[T]he justification of a law for us cannot be found in the fact that our fathers always have followed it. It must be found in some help which the law brings toward reaching a social end. [4]

Justice Louis Brandeis also urged the Court to break new ground, declaring:

If we would guide by the light of reason, we must let our minds be bold. [5]

Justice Benjamin Cardozo, who openly rejected transcendent laws and fixed rights and wrongs such as the Moral Law and Inalienable Rights, similarly avowed:

If there is any law which is back of the sovereignty of the state and superior thereto, it is not law in such a sense as to concern the judge or lawyer. [6]

Cardozo also advocated seizing a new power for judges – a power that had always been explicitly denied them in the Constitution: the power of making law. He declared:

I take judge-made law as one of the existing realities of life. [7]

Significantly, the Constitution deliberately excluded judges from any law-making role, for judges were unelected; the Constitution had ensured that only those directly accountable to the people would make the laws and policies under which the people were to live. But under a Living Constitution, this all changed. As affirmed by Chief Justice Charles Evans Hughes:

We are under a Constitution – but, the Constitution is what the judges say it is. [8]

What mattered now was not what the Constitution said, but rather what the judges decreed. When Earl Warren became Chief Justice, he reaffirmed that the Constitution “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” [9]

Because the explicit wording of the Constitution no longer mattered to Living Constitution judges, they began striking down numerous long-standing historical practices that were still widely supported by the people; and in striking them down, they proudly acknowledged that they were doing so without any precedent. [10] In other words, the Court publicly announced that it had finally arrived at its fully evolutionary state, no longer being bound by history or the Constitution but only by its own wishes and agenda.

As previously noted, the driving force behind these changes was evolutionary theory, which has at its core the thesis that because man is always evolving, then everything around him must also be made to change in order to keep pace. Consequently, past ways of doing things must regularly be replaced with new ways.

Today, many wrongly believe that evolution is largely a science debate, but it is not; it is actually a worldview debate. Even attorney Clarence Darrow, who represented the evolution side in the famous 1925 Scopes trial, acknowledged that he was arguing the case as “a death struggle between two civilizations.” [11]

Thus, when evolutionary belief is applied to law, it results in the Living Constitution. And when it is applied to education in general, it results in continually trying new methods of teaching and instruction, even if the old ones still work well. For example, in the name of “progress” and “change,” traditional “old” math instruction that involved memorizing math tables was discarded and replaced with “new” math. A U. S. Senator reported the results:

In Palo Alto, California, public school math students plummeted from the 86th percentile to the 56th in the first year of new math teaching. This awful [new math] textbook obviously fails to do in 812 pages what comparable Japanese textbooks do so well in 200. The average standardized math score in Japan is 80. In the United States it is 52. [12]

Similarly, on the grounds that old methods of teaching English skills are boring to students and needed to be evolved, diagramming sentences and traditional grammar instruction was dropped. Now only one-third of students can write at a proficient level, and only two percent can write at an advanced level. [13]

And reading professionals similarly demanded that the old traditional phonics learning be dropped and replaced with something fresh and new – like whole-language recognition. Reading scores promptly plummeted; and whereas America had once been #1 in the world in literacy, it fell to #26. [14] In fact, scores tumbled so fast and so far that the California Board of Education eventually took what one national newspaper described as “the drastic step” of re-adopting phonics – of going back to old things that worked. [15]

And since evolution seeks to leave the past behind, the one educational subject most directly impacted is the study of history. After all, since what is in the past is of no relevance today, the study of history is a complete waste of time. Consequently, several states have adopted what is now termed the Twentieth-Century Model, teaching high school students only that which happened from 1900 forward. [16] And among the elite colleges and universities as ranked annually by U. S. News and World Report, none – not one – any longer requires any course in American history for graduation. [17]

The concept of a Living Constitution that “evolves” to keep up with the needs of society sounds appealing, but under that approach, unelected elites make the decisions for everyone else, imposing their own personal beliefs and agenda on a community, state, or the nation. Under the Original Intent approach, the people themselves are in full control of changing their society, and the Constitution thus provides for its own “evolution” through the process of constitutional amendments; no constitutional change can go into effect unless approved by the people themselves. This is the constitutional process that has been utilized for over two centuries, and it keeps the people in charge. As Samuel Adams affirmed:

[T]he people alone have an incontestable, unalienable, and indefeasible right to institute government and to reform, alter, or totally change the same when their protection, safety, prosperity, and happiness require it. And the federal Constitution, according to the mode prescribed therein [Article V], has already undergone such amendments in several parts of it as from experience has been judged necessary. [18]

George Washington, in his “Farewell Address,” warned America to adhere strictly to this manner of changing the meaning of the Constitution:

If, in the opinion of the people, the distribution or the modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation, for . . . [this] is the customary weapon by which free governments are destroyed. [19]

The real danger of a Living Constitution rests not in the fact that societal corrections are needed but rather in the fact that they are made by unelected and unaccountable individuals whose personal values usually do not reflect those of “We the People.”

If the evolution of society still rested in the hands of the people as originally intended, then America today would still retain much of what Courts have struck down over recent decades. For example, national polls regularly show that three-fourths of the nation still approves of voluntary school prayer; [20] two-thirds oppose same-sex marriage; [21] three-fourths oppose unrestricted abortion-on-demand; [22] etc.

It is time for the people to regain their voice by rejecting the Living Constitution and returning to Original Intent, thus taking power from the hands of the unelected (and therefore unaccountable), and returning it in the hands of the elected (and therefore accountable). Two things will cause this to occur.

First, follow the advice of Founding Father John Jay, the original Chief Justice of the U. S. Supreme Court, who admonished:

Every member of the State ought diligently to read and to study the constitution of his country. . . . By knowing their rights, they will sooner perceive when they are violated and be the better prepared to defend and assert them. [23]

So, first read the Constitution; it only takes twenty minutes. But then also study and know it by reading one of the modern-language editions of the Federalist Papers (such as Original Argument) so that you will fully understand what was intended by every clause.

Second, use the power of the ballot box to remove Living Constitution proponents. As George Washington affirmed:

The power under the Constitution will always be in the people. It is entrusted for certain defined purposes, and for a certain limited period to representatives of their own choosing; and whenever it is exercised contrary to their interest or not agreeably to their wishes, their servants can, and undoubtedly will be recalled. [24]

We must elect individuals who will act in conformity with the original intent of the Constitution. We must first make sure that the presidents, governors, senators, and representatives we elect support original intent, and second, that they will use it to get judges and unelected officials back under control, removing those who ignore or usurp the Constitution.

By using these two steps – knowing the Constitution and voting accordingly – the American constitutional republic can be fully restored.

[1] “Simpsons Outpace U. S. Constitution,” cbsnews.com, March 1, 2006 (at: http://www.cbsnews.com/stories/2006/03/01/politics/main1356854.shtml?cmp=EM8705); “D’oh! More know Simpsons than Constitution,” msnbc.com, March 1, 2006 (at: http://www.msnbc.msn.com/id/11611015/#.T8-Kbr_R1y4).

[2] Thomas Jefferson, Memoir, Correspondence, and Miscellanies, Thomas Jefferson Randolph, editor (Boston: Gray and Bowen, 1830), Vol. IV, p. 373, to Judge William Johnson on June 12, 1823.

[3] John Eidsmoe, Christianity and the Constitution (Michigan: Baker Book House, 1987), p. 394.

[4] Oliver Wendell Holmes, Collected Legal Papers (New York: Harcourt, Brace and Howe, 1920), p. 225, “The Law in Science – Science in Law.”

[5] New State Ice Company v. Liebmann, 285 U.S. 262, 311 (1932) (Louis Brandeis, J., dissenting).

[6] Benjamin Cardozo, The Growth of the Law (New Haven: Yale University Press, 1924), p. 49.

[7] Benjamin Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921), p. 10.

[8] Charles Evans Hughes, The Autobiographical Notes of Charles Evans Hughes, David J. Danelski, editor (Cambridge: Harvard University Press, 1973), p. 144, speech at Elmira on May 3, 1907.

[9] Trop v. Dulles, 356 U.S. 86, 101 (1958).

[10] See, for example, Abington v. Schempp, 374 U.S. 203, 220-221 (1963).

[11] John Thomas Scopes, The World’s Most Famous Court Trial: Tennessee Evolution Case (Cincinnati: National Book Company, 1925), p. 74, Clarence Darrow, July 13, 1925.

[12] “Congressional Record: 105th Congress (1997-1998),” Library of Congress, Sen. Robert Byrd, “A Failure to Produce Better Students,” June 9, 1997.

[13] D. Salahu-Din, H. Persky, and J. Miller, “The Nation’s Report Card: Writing 2007,” National Center for Education Statistics, 2008, p. 9 (at: http://nces.ed.gov/nationsreportcard/pdf/main2007/2008468.pdf).

[14] “Education: Literacy (total population),” NationMaster.com (at:  http://www.nationmaster.com/graph-T/edu_lit_tot_pop&int=-1) (accessed on January 27, 2004).

[15] Diana Jean Schemo, “California Leads Chorus of Sounded-Out Syllables,” New York Times, February 9, 2002 (at: http://www.nytimes.com/2002/02/09/education/09PHON.html).

[16] Sheldon and Jeremy Stern, “The State of State U. S. History Standards in 2011,” Thomas Fordham Institute, February 2011 (at: http://www.edexcellencemedia.net/publications/2011/20110216_SOSHS/SOSS_History_FINAL.pdf), These findings are based on the published scope and sequence of history standards for the various states. States that require high school students to learn only from 1900 forward include California, Connecticut, Nevada, North Dakota, Oregon, and Washington. States that require high school students to learn from Reconstruction (i.e., 1876) forward include Colorado, Delaware, Florida, Hawaii, Indiana, Kansas, Kentucky, Louisiana, Maryland, Michigan, Missouri, New Mexico, Ohio, South Dakota, Tennessee, Texas, and Utah.

[17] “Losing America’s Memory: Historical Illiteracy in the 21st Century,” American Council of Trustees and Alumni, August 4, 2003 (at: https://www.goacta.org/publications/downloads/LosingAmerica%27sMemory.pdf). This report charged that 55 colleges and universities, including the most prestigious, have no U. S. history requirement, and only a fifth of colleges require courses in history at all.

[18] Samuel Adams, The Writings of Samuel Adams, Harry Alonzo Cushing, editor (New York: G. P. Putnam’s Sons, 1908), Vol. IV, p. 388, to the Legislature of Massachusetts on January 19, 1796.

[19] George Washington, Address of George Washington, President of the United States and Late Commander in Chief of the American Army, to the People of the United States Preparatory to His Declination (Baltimore: Christopher Jackson, 1796), p. 22.

[20] David W. Moore, “Public Favors Voluntary Prayer for Public Schools,” Gallup, August 26, 2005 (at: http://www.gallup.com/poll/18136/Public-Favors-Voluntary-Prayer-Public-Schools.aspx).

[21] “Marriage,” Gallup (at: http://www.gallup.com/poll/117328/marriage.aspx) (accessed June 5, 2012). “List of U.S. state constitutional amendments banning same-sex unions by type,” Wikipedia (at: http://en.wikipedia.org/wiki/List_of_U.S._state_constitutional_amendments_banning_same-sex_unions_by_type) (accessed on June 8, 2012), list of states banning same sex-marriage include: Alaska with 68% voter approval; Nevada with 69.6% and 67.1% voter approval (Nevada law requires a constitutional amendment to be passed in consecutive elections); Mississippi, 86%; Missouri, 72%; Montana, 67%; Oregon, 57%; Colorado, 56%; Tennessee, 81%; Arizona, 56%; California, 52%; Nebraska, 70%; Arkansas, 75%; Georgia, 76%; Kentucky, 75%; Louisiana, 78%; North Dakota, 73%; Ohio, 62%; Oklahoma, 76%; Utah, 66%; Kansas, 70%; Texas, 76%; Alabama, 81%; Idaho, 63%; South Carolina, 78%; South Dakota, 52%; Wisconsin, 52%; Florida, 62%; North Carolina, 61%; Michigan, 59%; Virginia, 57%; etc. The average approval percentage is above two-thirds.

[22] “Abortion,” Gallup (at: http://www.gallup.com/poll/1576/abortion.aspx) (accessed June 5, 2012).

[23] John Jay, The Correspondence and Public Papers of John Jay, Henry P. Johnston, editor (New York: G. P. Putnam’s Sons, 1890), Vol. I, pp. 163-164, from his Charge to the Grand Jury of Ulster County, September 9, 1777.

[24] George Washington, The Writings of George Washington, Jared Sparks, editor (Boston: Russell, Odiorne and Metcalf, 1835), Vol. IX, p. 279, to Bushrod Washington on November 10, 1787.