Opinion: Our living Constitution

Sol Wachtler is a former chief judge of New York State and is a professor of constitutional law at Touro Law School. David Gould is a practicing attorney and a former assistant U.S. attorney for the Eastern District of New York.

In a recent debate before Congress, Supreme Court Justice Stephen Breyer expressed the view that the Constitution is a living document that should be interpreted to adapt to modern life. In that same debate, Supreme Court Justice Antonin Scalia said: "I hope the 'living Constitution' will die."

Both the Republican establishment and the tea party argue that a strong reason to elect a Republican president is that he or she will appoint only "strict constructionist" or "originalist" judges. As a strict constructionist, Scalia believes that judges should interpret the Constitution by its explicit wording and by discerning the framers' intention when they wrote it.

A feral fly in the strict construction ointment has always been the Dred Scott decision. The 1857 case needed only to determine, as it did, that a slave taken into a free state does not thereafter become free. But the court went further, declaring, in effect, that slavery could not be prohibited in the new territories and its abolition in the many Northern states was unconstitutional.

Chief Judge Roger Taney wrote in his majority decision: "[No] change in public opinion or feeling, in relation to this unfortunate race, in civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted."

Like an aristocratic family desperate to disavow the 19th century horse thief in its genealogy, today's strict constructionists are desperate to disavow the Dred Scott case. No case better illustrates the judicial havoc than can be wreaked if the Constitution is treated as a straitjacket that holds all future generations immobile. As recently as two weeks ago, in a speech given at Chicago-Kent School of Law, Scalia called Dred Scott a "mistake" and wrongly decided.

But the strict constructionists cannot disinherit the case because originalist DNA is suffused throughout the decision. Justice Scalia's futile attempts to disavow Dred Scott underlines another fatal flaw in the originalist doctrine. Taney and Scalia are not the only people who disagree about the history and intent of various Constitutional provisions; the framers themselves disagreed. The strict constructionist doctrine requires that one divine what often cannot be divined.

The Dred Scott decision is not just an anomalous result arising from the application of the strict construction doctrine. Apply the doctrine to the issues of today, and you'll arrive at the only slightly less repugnant position that since the 14th Amendment's Equal Protection clause was not intended to secure rights for women, women today should not be afforded its protection -- even though depriving women of the right to vote or dispose of their own property would be unthinkable now. Indeed, it is precisely the position of Justice Scalia that the Equal Protection clause cannot be applied to protect women.

There's yet another flaw in the originalist doctrine, a fatal one. Even though this judicial philosophy mandates that one make constitutional decisions as if standing in the shoes of the framers of the Constitution, human nature dictates that it is not possible to shed your own shoes. Nowhere is that truism of human nature better illustrated than in an analysis of the Sedition Act of 1798.

A mere decade after the adoption of the Constitution, the 5th U.S. Congress passed and President John Adams, a founding father, signed this law, making it a crime to publish "false, scandalous, and malicious writing" against the government, the president or a member of Congress.

That 1798 Congress was in a far better position to know the intent of the First Amendment than any strict constructionist today, since it was filled with legislators who were active participants in the drafting or ratification of the Constitution and the Bill of Rights. These well-respected men felt that criminalizing false and malicious criticism of the government and its officials did not run afoul of the First Amendment.

The First Amendment prohibits the Congress from abridging "freedom of speech." It makes no exceptions. Yet in more recent decades, the strict constructionists have supported carving out some judicially created exceptions to the First Amendment -- such as "obscenity" and "defamation" -- even though all of those exceptions are inarguably speech. Hence the strict constructionists agree that the literal wording of the First Amendment should not be strictly construed. Carve-outs are in play.

All the Sedition Act did was to create a First Amendment carve-out for false and malicious speech that criticized the government. Today, everyone from the far left to the far right would be appalled at such an exception to free speech. You couldn't find a liberal or conservative judge anywhere who would not declare it unconstitutional in the flick of a gavel. But back in 1798, a majority of the Congress found no problem with it. The act was not found to be unconstitutional by the courts. It ceased to operate due its own sunset provision.

There were many convictions under this law. A U.S. Congressman from Vermont, Matthew Lyon, was found guilty in 1798 of violating the Sedition Act for claiming the Adams administration to be full of "ridiculous pomp, foolish advocation, and selfish avarice." The Supreme Court justice who presided over the Lyon trial was both a framer and signer of the Constitution and deeply involved in discussions concerning the Bill of Rights. He explicitly determined that the Sedition Act did not violate the First Amendment. He was inarguably in a better position than, say, Justice Scalia to discern the intent of the framers. Yet, Scalia would have declared a similar Sedition Act to be unconstitutional within five seconds of the briefs hitting his desk. He has made it clear that in his view, political speech is precisely the speech meant to have the most protection by the First Amendment.

What Matthew Lyon was convicted of sounds like a governmental love note compared to what governmental critics write today. The anti-Obama birthers and the anti-Bush truthers would have been easy victims of the Sedition Law. So how is it that a law that would appall people of all political persuasions in this country today was passed by a majority of the Congress in 1798? By the strict constructionist analysis, there should have been no difference in the view of the First Amendment from then to now. But there was a sea change in the analysis of the First Amendment, even though the amendment itself has not changed one iota in these 200-plus years.

What changed was the sensibilities of the country. The great generation of 1798 did not find slavery, total disfranchisement of women and property qualifications for voting to be appalling. It's no surprise that they weren't of one mind about criminalizing speech that criticized the government. Given the evolution of this country, it's also no surprise that today we are of one mind that criminalizing the criticism of government is in violation of the very essence of the free speech clause of the First Amendment.

The principal reason why Justice Scalia's view of the unconstitutionality of the Sedition Act differs so greatly from that of President Adams is that Scalia's constitutional interpretation is heavily influenced by the zeitgeist in which he lives. The truth be out, then. Like it or not, even the strict constructionists treat the Constitution as a dynamic document. The "living Constitution" lives.