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Because words now mean something different than when they were originally ratified. There is a difference between reading the constitution with a history book and with a modern dictionary. Of course the problem with that is its obviously not going to work. Even in antiquity, 250 years was a long time.
Please,
please, if you're going to talk about the process of interpreting the Constitution in a manner like this, say it with more nuance and finesse than this.
Which words in the Constitution have a different meaning today than they did 235 years ago?In Article 1, Section 2 of the Constitution, it says that members of the House of Representatives must "have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall ..., when elected, be an Inhabitant of that State in which he shall be chosen." Representatives shall have a two-year term. In Section 3, it says that members of the Senate must "have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall ..., when elected, be an Inhabitant of that State for which he shall be chosen." Senators shall have a six-year term. In Article 2, it says that the President must be "a natural born Citizen, or a Citizen of the United States, ... have attained to the Age of thirty five years, and been fourteen Years a Resident within the United States." Presidents shall have a four-year term. Article 6: "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution, ..." Out of all of those words, which ones mean something different today than they did 235 years ago?
The 17th Amendment was adopted 109 years ago. Which words in that amendment mean something different today than they did 109 years ago? The 22nd Amendment was adopted 71 years ago. Which words in that amendment mean something different today than they did 71 years ago?
Various parts of the Constitution were written with enough clarity and precision that they are not open to different possible interpretations by different branches of government, nor different possible interpretations in different eras of our history. With many provisions, the words still mean today the exact same thing they meant when they were first adopted. OTOH, the
context in which some of the words I described above might be different to different interpreters -- not different in terms of the era, but equally different to different interpreters then as now. For example, in referencing the Qualifications Clauses in Article 1, it is clear what the qualifications for members of Congress ARE, but are those sets of qualifications
exhaustive? If they are exhaustive, are they just as exhaustive from the perspective of the state governments as they are from the perspective of the federal government? Over 50 years ago, the House deemed itself capable of disqualifying someone from sitting in their chamber because of that person's ethical lapses. They decided they do not have to let Representative Adam Clayton Powell Jr., take his respective seat in the House from NY district 18. In the lawsuit
Powell v. McCormick, the SCOTUS disagreed with the House, and said, in so many words, that if the House thinks Powell did something unethical and unworthy of a member of the House, they still have to seat him and then, afterwards, vote to expel him. The SCOTUS interpreted the Qualification Clause in Article 1, Section 2, to mean that anyone who meets the three qualifications for service in the House, and who rightfully won election, cannot be disqualified for any reason that the House spontaneously makes up on the spot. Over 25 years later, the SCOTUS decided, by 5 to 4, that the Qualifications Clauses in Article 1 of the Constitution were exhaustive qualifications even from the perspective of the state governments; hence, no state can pass a law disqualifying someone from getting elected to Congress based on how long they had already been serving in Congress. In
U.S. Term Limits Inc. v. Thornton, the Court struck down a state law fixing term limits on the members of Congress from that state. So what was clear from the words of the Qualifications Clauses was precisely what are the qualifications for members of Congress, but what was nowhere near as clear was whether or not those Clauses are exhaustive.
Be that as it may, not all provisions are written with the same degree of clarity and precision. "Constitutional provisions exist on a spectrum ranging from the relatively specific to the extremely open-textured." (John Hart Ely,
Democracy and Distrust, published 1980, page 13.) First Amendment rights HAVE experienced a growth in their meaning that undoubtedly extend beyond what they meant 235 years ago -- rights such as freedom of speech, of the press, and the right of the people to peacefully assemble. Also in the First Amendment is the Establishment of Religion Clause, which has certainly experienced a number of problems regarding different possible interpretations (especially in the last 75 years). At the far end of what Ely called a spectrum of different constitutional provisions is the Equal Protection Clause, which I contend has experienced two different kinds of growth. One kind of growth, which I find completely acceptable, is
linear growth, and the other kind, which I find completely unacceptable, is
multilateral growth.
The linear growth I accept as legitimate is that the starting point of the meaning of the EPC is that it prohibits racially discriminatory laws and practices by state governments. That originally understood meaning has grown in such a way, over decades of case law development, that it now addresses specific subject areas that, 154 years ago, extremely few supporters of the 14th Amendment would have agreed that the clause addresses. That is, in 1868, extremely few supporters of adoption of the 14th would have agreed that they banned miscegenation laws, but 99 years later, the Supreme Court felt that, given the development of case law for the preceding 90 years or more, they had no other choice but to forbid miscegenation laws. (Hence,
Loving v. Virginia.)
But the multilateral growth I have seen in constitutional law, which I do not accept as legitimate interpretations of the Equal Protection Clause, has occurred in the way the Court has expanded the meaning of that Clause so that it addresses other kinds of classifications besides race. First, the Supreme Court gradually - haphazardly - developed the so-called "rational-basis test" to handle all of the nonracial cases on its docket. This was a lenient and deferential legal standard (and FLIMSY, TOOTHLESS, SUPERFLUOUS) that rarely struck down any laws at all (at least, it was extremely rare before the 1920's). In 1915, the Court began to treat the EPC as if it addresses discrimination against noncitizens (although the Court's treatment of that issue was still a bit haphazard). In 1938, the meaning of the EPC was spread in such a way that it could be an attack on any legislation aimed at any other kind of xenophobia besides just racial prejudice: "prejudice against discrete and insular minorities may be a special condition which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities. ..." Forty-two years after that, John Hart Ely observed, "During the Warren era, the Supreme Court was quite adventurous in expanding the set of suspect classifications beyond the core case of race. Laws classifying to the comparative disadvantage of aliens, persons of 'illegitimate' birth, even poor people, were all at one time or another approached as suspect." The Burger Court, during the 1970's addresses sex discrimination in a somewhat similar fashion too (although that Court slammed the door shut on the concept of treating "the poor" as a suspect class). Starting in 1996, the Court also began expanding the EPC to cover the subject of discrimination against gays, lesbians, and bisexuals (although the Court disingenuously avoided saying that there was any such an expansion). Expanding the meaning of the Equal Protection Clause in all these ways is what I call multilateral growth, and it's all unacceptable to me (even though I'm gay), because I'm extremely doubtful that most of the people of the late 1860's who supported the 14th Amendment would have wanted any and all of these expansions to occur.
This a way that I have to disagree with you, Person Man, about the part of what you said that I bolded. (And I do not comprehend what you meant by the next sentence, that I did not put in bold.)
