Posted by: Paul Chiariello | January 17, 2011

The Inherent Flaw of Constitutional Dogmatism

I can understand how someone can take a fundamentalist approach to religion.  God is supposed to be omniscient and flawless after all.  In the case of God and the scriptures we just have to figure out what He is saying and then we’ll know what to do.  But I have always been bewildered when the same kind of ‘scripturalist’ stance is taken to the Constitution and the Founding Fathers that wrote it.

In the NY Times article If Scalia had His Way and the collection of opinion pieces in response, Jeffrey Rosen and various opinion writers talk about Judge Scalia’s Constitutional Originalism vigor.  They argue that most Originalists aren’t consistent in their pursuit of Constitutional purity (the Fed, criminal laws, federal prisons, inter-state highways and a lot of other everyday parts of our economy and society would probably have to go) and also that it is impossible and even arrogant to presume to know the Founding Father’s beliefs on the nature of violent video games, Climate Change, International Organizations like the UN or other things that are so drastically different from what they experienced over two hundred years ago.  Though I believe these are two good arguments for why Scalia’s approach to the constitution is irrational, I believe they miss a much stronger and simpler point against it.

Unlike claims about the Bible or Quran, the Constitution was not written by a group of omniscient and benevolent demi-gods.  Everyone, even Scalia I’m sure, believes that Jefferson and the other authors made mistakes every once in a while.  Not only that, but they argued amongst themselves about every point in the document.  They knew that they could not foresee every possible future context and they knew that their arguments may eventually not prove as strong or to be as valid as the world changed and better arguments were made.  For these very reasons, they set up a process to amend their conclusions should we decide that a different plan of action would result in better economic, social or political outcomes.

Everyone agrees that the authors of the constitution make mistakes.  It follows very nicely that the constitution probably has some mistakes in it.  All those who agree with even one of the amendments to it since it was first penned will agree with me on this.  Now if there are errors in the Constitution, how do we find them?  How would we know what to do in a situation where the Constitution turns out not to lend the best advice?  Well if we wanted to guarantee that we would never find those errors and continually make worse choices in those situations, we would simply treat the document as if it were perfect and take as summum bonum whatever it happens to already say and whatever 200 year old dead men believed in their own day.

As Rosen points out in his article, the debate about violence in video games became a debate about, in Scalia’s words, “what James Madison thought about violence.”  This is an interesting topic.  I, too, wonder what James Madison thought about violence.  But it is in no way relevant to what we should do concerning video game violence in this country, unless Madison happened to have a valid, relevant argument that discussed relevant economic and social implications.  But in that case the argument should then stand on its own.  The argument should have no special privileges solely because it came from Madison.

Treating Madison, Jefferson or the Constitution’s arguments as having some special access to truth and authority merely because of their source is to guarantee we will never find out at what points they went wrong.  And if we never locate those errors, we can never fix them.  Putting them on a pedestal means we willingly rule out the possibility of fixing any of their human errors.

We must, of course, stick to our Constitution faithfully.  I’m not saying this country would be better off without a Constitution that political authorities and citizens must adhere to. There is much to be said for the controlling the wild political actions and reactions of the moment.  But the reason we should continue to adhere to our Constitution is because each of the conclusions written out in it have rational and relevant arguments that justify them.  And we need to debate those conclusions constantly to make sure it stays a strong Constitution that we can be proud of.  Only with debate and constantly rechecking the contemporary relevance of those arguments can we amend those parts we come to believe are wrong or have become inapplicable.

With no small note of irony I would like to end by quoting from Payne’s Rights of Man.  “The circumstances of the world are continually changing, and the opinions of men change also; and as Government is for the living, and not for the dead, it is the living only that has any right to it.  That which may be found right and found convenient in one age may be thought wrong and found inconvenient in another.  In such cases, who is to decide, the living, or the dead?”


  1. Hi Brother Paul,

    This so nice to read and keep it up with this wonderful work you are doing……

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