The Ark of America

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Anyone who doubts that the Constitution is a living thing that changes and evolves should think about the difference between the document then and now. As framed 200 years ago, the Constitution was virtually paranoid on the subject of democracy. James Madison wrote in The Federalist about his view of democracy and direct government. If every Athenian citizen had been a Socrates, he thought, every Athenian assembly would still have been a mob. The founders began, "We the People." And yet "the People" had very little to do with writing the thing. The framers, working behind closed doors and shut windows, were highly literate white males -- landowners, military heroes, merchants, accomplished lawyers. Hardly a word was heard from the common folk. Only 133 years later, with the 19th Amendment, did women acquire the right to vote.

If there is any matter on which the original intent of the founders is clear, it is the issue of slavery. Says Columbia Law Professor Jack Greenberg, former director-counsel of the N.A.A.C.P. Legal Defense and Educational Fund: "The original Constitution not only accepted slavery, but it gave the South a bonus for it" -- the stipulation in Article I, Section 3 that in apportioning Representatives for the House, "three fifths of all other persons" should be added to the "whole number of free persons."

Deeds as well as words have made the Constitution -- sometimes deeds that were considered illegal. As Harvard Law Professor Laurence Tribe remarks, "The framing of the Constitution has been a continuous process rather than a purely episodic one. I think the real framers were not only the gentlemen who met in Philadelphia and those who drafted and ratified the crucial amendments, such as the amendments following the Civil War, but also the many people who often in the roles of dissent and rebellion, sat in, or marched and sang, or sometimes gave their lives, in order to translate their vision of what the Constitution might be and how it should be understood into political and legal reality."

The law of the land evolves, sometimes from grotesque early versions. In its Dred Scott decision in 1857, the Supreme Court declared that blacks do not have the rights of citizens. The law has been changed at barricades, in the streets, by a procession of Americans like John Brown, Rosa Parks, Martin Luther King Jr. Women struggled for two or three generations to acquire the right to vote.

A dozen years ago, Supreme Court Justice Potter Stewart gave a speech to a group of journalists regarding the First Amendment's protection of a free press. "The Constitution," he said, "is not a self-executing document . . . If you went back to the original understanding of our ancestors, back in the early years of the 19th century, you would find that their understanding of this clause and the Constitution in their judgment allowed them to enact the Alien and Sedition laws. And if those laws were still on the books, Richard Nixon would still be President of the U.S. and Spiro Agnew would still be Vice President, and all of you people would probably be in prison."