Perhaps I am not a Public Intellectual (TM) just yet

Apparently, Tuesday was “constitution day,” a day that I don’t remember being taught in elementary school to celebrate, unlike all the other patriotic holidays, but which mostly seems to involve being handed pocket copies of the constitution. And, evidently, yours truly attempting to hamfistedly summarize his personal views on constitutional interpretation for student journalists. The lighter side of Constitution Day:

Student Journalist, 3:24pm:

Dear Professor Gowder,

My name is [XXX] and I am a metro reporter for the Daily Iowan. I am writing an article on Constitution day and was directed to you to get answers to some questions I have. It would be a privilege to hear your perspective on the matter. My deadline is at 5:30 so I would need your answers at no later than 5:00. If it is possible for you to respond to these questions before then, I would deeply appreciate it. I look forward to potentially hearing from you and thank you for your time.
1.) In light of this holiday, how do you think we should be viewing the Constitution now days?

2.) Is it a living document meant to be changed with the times or a historical document that should be left alone?

3.) How does that apply to current debates over issues such as the second amendment and the 14th amendment?

4.) What other current debates do you think involve the constitution that need to be addressed in a certain way?

5.) Why is it important to read/recognize/celebrate our constitution today



Daily Iowan Metro Reporter

Yr. Correspondent, 3:59pm, thinking he’s saying something useful:

Dear [XXX],

Those are some very complicated and involved questions! All of them are subjects of hot debate among legal scholars, judges, politicians, philosophers, and many others.

So I’ll just tell you what I think.

The root of the word “constitution” is “constitute”: to make a constitution is to constitute a bunch of people as a political community. We have to understand our constitution in that light: it’s an expression of what it means to be us, our shared commitment as a people. Accordingly, the constitution we have expresses that commitment in many of its most important provisions in the form of moral ideals: “equal protection of the laws,” “cruel and unusual punishments,” “due process of law,” “freedom of speech,” “unreasonable searches.” In order for the constitution to continue to express our collective moral identity, today, we have to interpret those terms as we understand them, in accordance with the evolving ideals to which we’re committed. That might not be the same as how James Madison, Alexander Hamilton, and Thomas Jefferson understood it. And that’s ok.

If you want to say that means the constitution is a “living document,” sure, fine, I can live with that, but to say that it’s a living constitution doesn’t mean we have to “change it with the times.” It’s still the same constitution; we’re still “leaving it alone”; but the meaning of the words in the constitution draws on social realities that are potentially different at every moment of interpretation. It’s still the same constitution, the ideals—no cruel punishments, for example—that it expresses are still the same ideals, but the meaning of what a cruel punishment is changes when we, the people, do. That’s just how collective practices of social value-making work. And that’s a good thing, too, because it means that our fundamental law continues to be ours, that we can continue to be actively committed to it, to demand that our government follow it, and hence to collectively protect the basic rights that we all cherish.


[shockingly, silence, and not quoting the undersigned’s rambling academic-ese.]

Perhaps one day I’ll get to be a Public Intellectual.

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