The Ark of America

(4 of 8)

Writers have often thought of the Constitution in nautical terms, a motif probably suggested by the image of the ship of state. In 1857 Macaulay told an American, "Your Constitution is all sail and no anchor." (A foreigner's elegant remark. Others suspect that the Constitution has entirely too much anchor -- too many checks and balances -- to make any headway at all.) The sociologist David Riesman likens the Constitution to the shallow keel of the national ferryboat, on which the passengers keep shifting from port to starboard and back again. One might also suggest the image of a trimaran -- a craft with three hulls (Legislative, Executive and Judicial) that is both stable and fast. Harvard's Paul Freund likes to think of the whole arrangement as a symphony orchestra or a jazz band.

A Newtonian, mechanical metaphor was prevalent during the Industrial Revolution. As America was celebrating the 100th anniversary of the document, James Russell Lowell observed, "After our Constitution got fairly into working order, it really seemed as if we had invented a machine that would go of itself, and this begot a faith in our luck."

Eventually, the Newtonian notion of the Constitution came to seem static. ; Thinkers like Woodrow Wilson and Oliver Wendell Holmes began referring to it as an animate thing. Wrote Wilson: "Society is a living organism, and must obey the laws of life, not of mechanics; it must develop."

A living thing grows and changes. In a speech in July 1985, Attorney General Edwin Meese argued that the Supreme Court had allowed the Constitution to become far too organic. He criticized the court for making the law rather than merely applying the law as it had been set down by the founders. The Justices, said Meese, should stick closely to the views of the men who wrote the Constitution; they should practice today a "jurisprudence of original intention."

The framers of the Constitution could not possibly have foreseen the America of the late 20th century, with its enormous national Government, its multinational corporations, its crime, computer technology, genetic engineering, pollution, mass media, nuclear weapons and the rest. Madison did not permit the notes that he made during the Constitutional Convention to be published until after his death, believing that the Constitution must stand alone, that the specific thoughts of individual framers were essentially irrelevant and might even be mischievous in later times.

"Original intent has a strong gravitational pull," acknowledges Columbia Law Professor Henry Monaghan. But how specific an intent are we looking for? Today's interpreters of the Constitution, for example, would never tolerate the brutality of the criminal punishments that were prevalent 200 years ago -- brandings, say, or the puncturing of nostrils. Notes Federal Appeals Court Judge Irving Kaufman: "I regard reliance on original intent to be a largely specious mode of interpretation. I often find it instructive to consult the framers when I am called upon to interpret the Constitution. But it is the beginning of my inquiry, not the end . . . The framers' legacy to modern times is the language and spirit of the Constitution, not the conflict and dated conceptions that lay beneath that language."