Gordon L. Weil
About 240 years ago, two major documents were committed to
print. Both were landmarks and both have
been the object of interpretation and evolution.
One is the U.S. Constitution. The other is Mozart’s
Piano Concerto No. 21, a major classical work. A recent New York Times commentary
offered a compelling analysis of what they have in common.
Both must be taken literally: read the words, play the
notes. But much has changed since they
were written. Tastes have changed, the
halls of Congress and concert halls have changed, and, above all, American
presidents and orchestra conductors have changed. Within
the limits of what was written, there’s room for different interpretations and
styles.
The Civil War, the Great Depression, World War II, the
Vietnam War, and Supreme Court rulings have all affected the terms and
underlying assumptions of the Constitution.
The relative balance of powers between the state and federal governments
and between the president and Congress have evolved.
The original drafters understood that the future interpretations
of the Constitution inevitably would have to recognize the effects of changes that
they could not envisage. For them, the
essence must be preserved: protecting people from the government as provided in
the Bill of Rights, the balance of power and individual liberty.
Originalists, like Justice Clarence Thomas, believe that the
terms of the Constitution must be interpreted as they were understood when it
was written. They assume that the Framers’ thinking embodied almost godlike wisdom
that could endure and could apply unchanged to any later turns of history.
An alternate view, probably held by the Framers themselves,
would be that the principles were permanent, but just as the world evolved, so
would the “living Constitution.” The challenge for courts would not only be to
recognize change, but how the Framers’ views would have evolved on how it should
be applied in the new world.
In interpreting Mozart’s concerto, to play it loud or soft,
fast or slow is the conductor’s job. In
American government, the job is shared by the three branches of the government. Increasingly, however, the president has become
the conductor of the music of the Constitution.
But, even if a president may alter the tempo and emphasis, they cannot
change the tune.
When a person assumes the presidency, the Constitution
prescribes the exact
commitment they are taking – to “preserve, protect and defend the
Constitution of the United States.” The
Constitution requires every office holder down to the local elected official to
make the same commitment. It is an
American loyalty oath for those exercising the public trust.
This commitment is necessary, because “absolute
power corrupts.” To avoid the
public trust expresed in elections becoming the path to authoritarian rule, as happened
in Germany in 1933, the commitment both reminds the new officeholder that they
are bound by a written code and requires them to publicly acknowledge their
acceptance.
When asked if he supported the Constitution, President
Trump, a man who proclaims his own unusually good memory, forgot the commitment
he undertook only 100 days earlier. “I
don’t know,” he said. Really? Or was he merely trying to give himself enough
scope to be able the change the constitutional tune.
He finds one key requirement cannot be observed in pursuing
his policy of mass deportation of illegal immigrants. All persons, not only citizens, have the
right to due process of law before the government takes action against them. That means they must be able to answer the government’s
charge and have the complaint and their defense judged by a neutral party.
Trump says that providing due
process to the millions he wants to eject would be impossible. He wants the Constitution to give absolute
power to him, because he won a presidential election. If due process for millions is impossible,
then Trump’s policy, not the Constitution, must give way. That’s the meaning of the obligation to protect
and defend the founding document.
He counts on his electoral majority to carry the great
weight. Behind this view may be the
“two-tier theory” of the law. As the law
applies to ordinary life, in matters from divorce to crime to contracts,
nothing changes. Most people see no
change in their lives and will accept the other tier that gives the president
powers unchecked by law.
Ultimately, the issue is likely to be determined by the Supreme
Court, perhaps within a couple of months.
Trump claims the automatic right to citizenship at birth in the U.S.,
found in the Fourteenth Amendment, has limits, allowing mass deportation of “birthright”
citizens. In 1898, the Supreme Court
said the right
was unconditional. The text and
legislative history were clear.
If the Court ends up agreeing with Trump’s new interpretation, the Constitution would no longer protect people from the government of the day. The music would end.
