The Constitution Is Alive, No Matter What Trump Does

(Bloomberg Opinion) -- Since President Donald Trump took the oath of office two years ago, a big question has been whether the 230-year-old Constitution is capable of meeting today’s challenges. Judging by his willingness to flout it — for example by threatening to declare an emergency and spend money without Congress’s approval — Trump’s answer seems to be no.

Meanwhile, a corresponding skepticism of the Constitution’s vitality may be emerging among Democrats, fueled by factors such as Trump’s assertiveness, an acknowledgment of the Framers’ racism and a sense of stagnated progress. Take a look at a recent Washington Post interview with Beto O’Rourke, the former Texas congressman, in which he posed “the question of the moment” and asked non-rhetorically:

Does this still work? Can an empire like ours with military presence in over 170 countries around the globe, with trading relationships … and security arrangements in every continent, can it still be managed by the same principles that were set down 230-plus years ago?

This is an intelligent question, notwithstanding snark from the National Review that found it “shocking” that O’Rourke “isn’t sold on the basis of the United States of America.” Around the world, observers in countries both democratic and otherwise find it alternately fascinating and puzzling that Americans attempt to govern themselves on the basis of the world’s oldest still-operating national written charter.

What’s worrisome to me, as someone who has spent my professional life focused on constitutions, isn’t the questioning, which is healthy and desirable in a constitutional democracy. Even Trump’s challenges to the constitutional order exemplify a familiar aspect of constitutional systems, which have to be stress-tested every so often and must able to withstand powerful challenges and challengers.

What’s scary is the premise of the question: that by living under the U.S. Constitution, Americans are self-managing using the same exact principles that the Framers dreamed up in the late 1780s.

That perception may be our myth. But it isn’t our reality. The Constitution that was drafted in 1787 and took effect two years later has developed drastically since, by formal amendment, by judicial interpretation, and by evolving customs and norms. The Constitution still works because it’s alive.

Don’t take my word for it. The metaphor of the living Constitution is itself 99 years old. Its author is none other than Justice Oliver Wendell Holmes Jr., by many lights the greatest justice to have graced the Supreme Court bench.

In the landmark 1920 case of Missouri v. Holland, which involved (possibly not by coincidence) a federal environmental law to protect migratory birds from being hunted to extinction, Holmes wrote:

When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.

Holmes’s idea was that the Framers brought the Constitution to “life,” like parents who create a “being” that will then “develop” and evolve in unexpected ways. The Constitution, for him, was a living thing.

And Holmes had a particular view of living beings: They had to evolve, or they would die. He was a believer in Darwinian evolution as it was then understood by many educated people — as a brutal process of death and destruction, of “nature, red in tooth and claw,” to use Tennyson’s redolent phrase.

Holmes went on about the Framers:

It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation.

The Framers “organism” had bled in one particular episode that was central to Holmes’s life experience, the Civil War. Holmes fought in the war, was wounded twice and lost his closest friend. After Holmes’s death, two uniforms were found in his closet. A note was pinned to them explaining that they “were worn by me in the Civil War, and the stains upon them are my blood.” The “sweat and blood” that had formed the evolving nation were Holmes’s own.

By invoking the Civil War, Holmes was reminding his readers — and us — that the Constitution that emerged from the war was radically different from the one that went in. The 13th, 14th and 15th amendments were added, purging the Constitution of the original sin of slavery. And the whole structure became much more national than federal, as Congress and the Supreme Court gained authority over state laws.

From his metaphor of the living Constitution, Holmes derived a concrete legal lesson: “The case before us,” he wrote, “must be considered in the light of our whole experience, and not merely in that of what was said a hundred years ago.”

Here is the essence of Holmes’s judicial philosophy — and a repudiation of originalism. Constitutional questions have to be decided according to the “whole experience” of national and constitutional evolution. To do otherwise is to ignore the evolution that has enabled the Constitution to endure.

So O’Rourke and other progressives shouldn’t worry about being stuck with the dead hand of the past. We aren’t stuck. Our Constitution lives. Its principles change and evolve. That flexibility is the key to its longevity — and ours.

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

©2019 Bloomberg L.P.