Imagine playing a game of telephone where a single phrase is whispered from one person to another, evolving with each repetition until the final version bears little resemblance to the original. Now imagine that game lasting for 240 years and influencing the lives of millions. This, in essence, is what has happened to the U.S. Constitution.
The shift in legal education from studying the Constitution itself to focusing on judicial interpretations—termed “Constitutional Law”—has turned our nation's foundational document into a tool for judicial creativity rather than a steadfast rule of law. Today, judges interpret precedent upon precedent, often treating the original text and intent of the Constitution as an afterthought. This deference to judicial precedent and the doctrine of stare decisis has created a judicial system more loyal to itself than to the Constitution.
The Problem with Precedent Over Principle
At its core, the Constitution is a simple, yet profound document. Its brevity and clarity reflect the Founders’ intent to create a government of limited, enumerated powers. As James Madison wrote in Federalist No. 45, “The powers delegated by the proposed Constitution to the federal government are few and defined.” The Constitution was never intended to be a malleable document subject to reinterpretation based on evolving societal norms.
However, the legal system’s reliance on stare decisis—the principle that courts should generally adhere to precedent—has elevated judicial decisions above the Constitution itself. A court ruling from 50 years ago, based on an interpretation of another court ruling from 100 years ago, is often given more weight than the original text or its framers’ intent. This is how judicial interpretation has become a self-referential echo chamber, disconnected from its constitutional anchor.
Consider the case of Wickard v. Filburn (1942), where the Supreme Court ruled that a farmer growing wheat for personal use could still be regulated under the Commerce Clause. This decision expanded federal power far beyond the framers’ intent, yet it remains a cornerstone of modern Commerce Clause jurisprudence. Each subsequent case builds on this distorted interpretation, further straying from the Constitution’s original meaning.
The Rise of Constitutional Law
The shift from teaching the Constitution itself to teaching Constitutional Law in law schools accelerated this trend. Early American legal education emphasized the study of the Constitution’s text and the intent of its drafters. Today, law students are primarily taught to analyze judicial opinions, which often reflect the biases, ideologies, and political pressures of the time.
As a result, the Constitution is no longer viewed as the ultimate authority; instead, it is treated as one voice among many in a chorus of judicial precedents. As Thomas Jefferson warned, “The Constitution…is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”
The case method, introduced in the late 19th century by Christopher Columbus Langdell at Harvard Law School, prioritized studying appellate court decisions over constitutional principles. This method, while useful for understanding judicial reasoning, shifted the focus away from the original text. Law students became adept at arguing within the confines of judicial precedent but less familiar with the Constitution as it was written and intended.
The Danger of a "Living" Constitution
The concept of a “living Constitution”—the idea that the Constitution must evolve with society—has further eroded adherence to the original text. Proponents argue that this approach allows the judiciary to adapt the Constitution to modern circumstances. Critics, however, contend that it grants unelected judges the power to amend the Constitution through interpretation, bypassing the rigorous amendment process outlined in Article V.
The dangers of this approach are evident in landmark cases like Roe v. Wade (1973) and Obergefell v. Hodges (2015), where the Court discovered rights not enumerated in the Constitution. Regardless of one’s stance on the outcomes of these cases, the methodology represents a troubling trend: judges acting as legislators, creating new constitutional rights based on contemporary values rather than the framers’ intent.
Returning to Constitutional Originalism
The solution to this judicial drift lies in a return to originalism, the principle that the Constitution should be interpreted based on its original meaning as understood at the time of its ratification. As Justice Antonin Scalia famously argued, “The Constitution that I interpret and apply is not living but dead—or as I prefer to call it, enduring.”
Originalism is not about resisting change or clinging to outdated practices. It is about preserving the integrity of the Constitution as a legal framework that can be amended, but not rewritten, by the judiciary. This approach respects the Constitution as a covenant between the governed and their government, not a blank slate for judicial activism.
To achieve this, legal education must shift its focus back to the Constitution itself. Law schools should prioritize teaching the text, history, and original intent of the framers, supplementing this study with judicial opinions rather than replacing the Constitution with them. Judges, too, must embrace their role as interpreters of the Constitution, not its authors.
The Stakes
The Founders understood the dangers of unchecked judicial power. As Alexander Hamilton wrote in Federalist No. 78, the judiciary “may truly be said to have neither FORCE nor WILL, but merely judgment.” This limited role ensures that the courts remain a safeguard of liberty, not a source of tyranny.
However, when judicial precedent outweighs constitutional principle, the courts become arbiters of their own power, undermining the very document they are sworn to uphold. The Constitution’s endurance depends on our willingness to defend it—not as it has been interpreted over centuries of judicial telephone, but as it was written and intended by its framers.
Conclusion
The Constitution is not a living document, nor is it a relic of the past. It is a binding contract, one that has endured because of its clarity, simplicity, and adherence to the principles of limited government and individual liberty. If we continue to treat it as a malleable set of ideas filtered through generations of judicial precedent, we risk losing the protections it was designed to provide.
To paraphrase James Madison, “The advancement and diffusion of knowledge is the only guardian of true liberty.” Restoring the Constitution to its rightful place in our legal system begins with knowledge—of its text, its history, and its original intent. Only then can we put an end to the long game of judicial telephone and preserve the Constitution as the enduring foundation of our Republic.
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