We cannot best understand or use The Constitution if we try to interpret it in its presumed “original” meaning. Apart from difficulties in ascertaining that meaning, the principles and the language reflecting and reinforcing its contemporary culture cannot invariably help us in current circumstances. For instance, the “press,” as in “freedom of the press,” strictly construed as the eighteenth century would have understood the word, meant either a human-powered machine which pressed paper to hand-set, inked type; or the resulting printed publications. An originalist exclusion of today’s electronic devices as “press”—radios, televisions, internetted computers, and various “walkie-talkie” type electronic devices—would make no sense to anyone.
However, especially when technology does not render their principles or terms obsolete, some idea of what the Founding Fathers meant can be valuable without being determinative. One instance is what the Founding Fathers understood by “speech,” as in its freedom. In this polity-defining document, they meant political speech. I am not sure what allowance they would have made for non-verbal expression; probably, they would have allowed flag-burning and hung effigies as speech but not money spent for candidates or parties, and certainly not for pornography. For the most part, I believe that they meant rational discourse about political issues, debate rooted in fact and logic, evidence and argument.
I am not suggesting that the Founding Fathers, when they created the Constitution, were fools who knew nothing about political protest and rabble-rousing—some of it to good purpose. They knew all about the Boston Tea Party. But, for the big causes and for the long run, they relied on a rhetoric of reason to prevail. Indeed, when he penned the Declaration of Independence, Jefferson did not write, “Down with the Crown” or other such slogans. He stated his assumptions, including those “truths” which he proclaimed to be “self-evident,” and gave his reasons, the multiple grievances of colonialists against the king, to justify the revolution. He hoped his words would persuade, not King George III to reform, but his countrymen to rally to the cause.
Almost 225 years later, those who address political issues no longer believe in that rhetoric or accept its underlying values, which, until lately, served us well. Instead, we resort without qualm or shame to a rhetoric of disrespect, dishonesty, and coercion; thus, repeated false claims in the health reform debate about death panels, and armed attendees at townhall meetings or rallies. Partisans on both sides, left and right, share this rhetoric. Some years ago, a Greenpeace representative whom I knew came to my home with a handout claiming that a nuclear power plant requires more energy to build than it can generate. I denied the claim; he promised documentation, failed to provide it, and disappeared into his group of true believers willing to lie for their cause and to disrespect both people and truth.
Although most cultural change occurs gradually, a sudden shift in rhetoric occurred in only a few years during the Vietnam War, the consequences of which shift are with us still. Since that shift, a growing number of teachers have not taught, and a growing number of students have not learned, the rhetoric assumed by the Founding Fathers. The result is a clear and present danger to public education, national values, and American democracy.
The shift resulted from the liberal assault on “the system”—structure, tradition, authority, elites, and reason—and on those who have some regard for them. The response to this assault was a conservative counter-attack emphasizing a macho patriotism of flag-waving and “law and order.” The result: the “culture wars” which we are still fighting today. The irony is that conservatives have learned and adopted the rhetoric of liberals—simple, unsupported standards or assertions of right or wrong: liberal “if it feels good, it is good” versus conservative “just say no.” Such assertions fail to serve civic discourse and find support only in non-rational forms of communication: shouting, marches, threats of violence—what we see on television or U-tube.
The reason: English and history teachers taught this rhetoric to those now today’s liberals and conservatives. Teachers taught them less and less to understand what others think, and more and more to respond to what they feel; less and less to communicate with others, and more and more to express themselves. Teachers approved all views, ignored their mistakes or misdirections, and thus failed to teach them how to handle correction or criticism. Teachers inculcated one lesson for life: a person’s say-so is privileged and right if sincere, and people who disagree are perverse and wrong.
So liberals and conservatives cannot handle adverse comments, seek out people and “press” with like views, and shun or attack those with unlike views. Partisan operatives resort to subsidized disinformation, smear campaigns, or armed intimidation—a rhetoric of dishonesty and coercion, not rational discourse. The alternative is a return to the rhetoric of the Founding Fathers: informed, intelligent, respectful, and civil. Otherwise, those who care more about ends than means, more about their political cause than their personal character, more about their power to prevail than a shared process by which people make, or should make, decisions under the Constitution—those owe their primary allegiance to something other than American democracy.