Common-place: Ask the Author: Still the Framers' Constitution?
Still the Framers' Constitution?
Cass R. Sunstein


In some respects, the Framers' constitution remains alive and well. Understood as an effort to create a deliberative democracy, the constitutional plan has succeeded in many ways. Perhaps above all, the system of checks and balances has ensured a measure of reflection and circumspection in government. Consider, for example, the cumbersome processes for the enactment of legislation, which provide an excellent check on the most ill considered measures. The failure to convict President Clinton, after an unconstitutional impeachment by the House of Representatives, is also a tribute to checks and balances. Or we might also look to the recent debate over measures to combat terrorism. The law eventually enacted by Congress (informally called the Patriot Act) was far more cautious and circumspect than early drafts. The system of checks and balances was the reason. Here too the Constitution's deliberative mechanisms made things much better than they would otherwise have been. The process of deliberations between Congress and the president, leading to basically fair and even elaborate procedures in military tribunals, provides yet another illustration.

Yet in other significant ways, our Constitution is not really the Framers' constitution. They would see huge differences between their handiwork and our institutions and our rights. I don't mean to refer to the obvious fact that the document has been amended in major ways, beginning, of course, in 1789. The more interesting source of change has been on the interpretive side. The cornerstones of the Constitution include the system of checks and balances, federalism, and individual rights. And none of these is what it originally was. Abraham Lincoln was of course an important "framer," in the sense that his views about the union, and about slavery, helped to produce large-scale constitutional change. But much has happened in the last hundred years. We might even see Franklin Delano Roosevelt and Martin Luther King Jr., as Framers, insofar as they contributed to significant alterations in our understanding of the founding document.


http://www.common-place.org/vol-02/no-04/author/