May 24, 2026

By Stephen Stofka

In her last interview, author of The Origins of Totalitarianism, Hannah Arendt said that Americans regard their Constitution as sacred text (Source). “There are no natives here. The natives were the Indians. Everyone else are citizens. And these citizens are united only by one thing and this is true: That is, you become a citizen in the United States by a simple consent to the Constitution.” Arendt was speaking of those, like her, who immigrated to America. For those born in the United States, even that consent is not a prerequisite to citizenship.

Is the Constitution sacred and what did Arendt mean by that? Former Justice Antonin Scalia was famous for his remark that the Constitution was “dead, dead, dead” (Source). Scalia believed that the meaning of the Constitution was fixed forever at the time it was written. In later remarks at Princeton University, he clarified that he favored an enduring rather than a living Constitution (Source). Scalia meant that the meaning of the Constitution was enduring. In his book Reading the Constitution, former Justice Stephen Breyer regarded the intention of the framers as enduring (p. 262). Breyer gave more weight to a law’s purpose and consequences in deciding the merits of a case before the court, rather than the text itself (p. xvi). I will call that intentionalism.

Scalia advocated a judicial interpretation he called originalism, an approach that tries to understand the original meaning of the text. Scalia’s method involved reading the Constitution as though it were a statute. In a speech he gave to students at Princeton University in 2012, Scalia said “When we read Shakespeare we use a glossary because we want to know what it meant when it was written. We don’t give those words their current meaning. So also with a statute — our statutes don’t morph, they don’t change meaning from age to age to comport with the whatever the zeitgeist thinks appropriate.”

The word naughty in Shakespeare’s time meant wicked or immoral, a moral condemnation. We use the word to describe someone acting mischievously. The word in his current usage does not convey moral condemnation. Of course, the English language was in a state of great transition during Shakespeare’s time. The meaning of the words in the Constitution have changed relatively little since 1787. A soldier carrying a flintlock rifle and an M-16 rifle are both bearing arms, the phrase used in the Second Amendment. Due to advances in gun technology and manufacture, the scope of that phrase has changed. The M-16 can be set to fire more than one shot. Did the framers intend to include any weapon that can be carried by a person, no matter how powerful and destructive it can be?

A Constitution is written using broader terms. A statute is written with specific terms and often contains definitions of those terms. Here is an example from the Colorado Revised Statutes: “Each eligible individual who is partially unemployed shall be paid a partial benefit. Partial benefits shall be in an amount equal to the eligible individual’s weekly benefit amount for total unemployment, minus that part of wages payable to the individual with respect to the week that is in excess of fifty percent of the individual’s weekly benefit amount…” (Source). Terms are defined as in “’Benefits’ means the money payments payable to an individual with respect to his unemployment. The different classifications of benefits are set forth in section 8-70-110” (Source).

Let’s look at Article 1, Section 2 of the Constitution, one of the more specific sections in the Constitution. “No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.” At first glance, the language might seem precise, but there are a lot of details missing. How shall the Representative substantiate his age? Birth certificate by a state agency? Eyewitness sworn before a local judge? A document signed by a registered midwife? If citizenship was not granted at birth, how should the Representative certify citizenship? A federal document attesting to that fact? What if there is a line entry in a federal register attesting to such citizenship, but the document itself was lost in a fire? Is that enough documentation? Does the qualification for state residency vary with the regulations of each state? These details are handled by statute or agency regulation, not by a Constitution.

Unlike statutes, the U.S. Constitution has few defined terms. James Madison objected to the insertion of the term “general welfare” in Article 1 of the Constitution because the term was imprecise. Others at the Convention responded that it would be up to future generations to determine what the phrase meant. Scalia and other textualists attach their own meaning to words, then claim the meaning they favor was the original meaning of the word. When historians show evidence to the contrary, textualist judges rarely defend their research.

The Constitution is like a landscape painting by James Whistler (Source). It is imprecise. Many details are missing. The painting is an invitation to come inside its borders, to explore its mood, the people and objects within that rectangular frame. A statute contains the details involved in constructing that painting. These include the kind of paint, it’s source and mixture, the quality of the linen for the canvas and how it should be primed. Constitutional text contains the vision. The supporting statutes are the instructions for implementing that vision. Textualist justices like Antonin Scalia, Samuel Alito and, to a lesser extent, Clarence Thomas treat Constitutional interpretation as though the Constitution was a paint-by-numbers hobby kit (examples here). Because it is not, the justices simply write in their own numbers on the canvas, and claim that the founding generation wrote in the numbers.

In the 2008 District of Columbia v. Heller opinion, Scalia treated the clause in the Second Amendment regarding the militia as a prefatory or incidental clause. The right to bear arms was not connected to service in the militia, Scalia argued. Why did the framers put that clause in? Scalia admitted that the “structure of the Second Amendment is unique in our Constitution” but found some examples in state constitutions (Source). This is the ploy of originalism. A jurist can dig through any number of historical documents until they find something that supports their interpretation of a text. They ignore all other historical evidence that contradicts their opinion, then pronounce that their opinion is grounded in the original meaning of the text.

In the 2022 Dobbs v. Jackson Women’s Health Organization opinion, Justice Alito wrote that the word abortion was not in the text of the Constitution (Source). Therefore, it was not a protected constitutional right. In the 2010 Citizens United v FEC opinion, former Justice Kennedy was not an originalist but found that money as a funding source for speech was protected under the First Amendment (Source). The First Amendment states “Congress shall make no law … abridging the freedom of speech.” The framers could have written “Congress shall make no law … abridging the freedom or funding of speech,” but didn’t. Justice Kennedy and the conservatives on the Court rewrote the Constitution they way they would have done it if they had lived two hundred years ago. That is a radical, not a conservative, approach.

The framers used general language in the Constitution to state principles, not regulations, so that future generations could instantiate those principles in evolving circumstances. The process of amending the Constitution, as set forth in Article V, was arduous. Surely, the framers did not intend that a few men on the Supreme Court could effectively amend by the Constitution by reinterpreting it. The framers never intended to give away their power to the judiciary. To do so would have been irrational. In Marbury v Madison (1803), Chief Justice John Marshall claimed the authority to decide the meaning of the Constitution, effectively executing a judicial coup of the legislature and the executive. Neither President Jefferson nor the Democrat-Republicans in Congress challenged Marshall. They were too involved in negotiations for the Louisiana Purchase completed two months after Marshall’s decision. Why did the framers give life tenure to judges? They never intended the judges to have Constitutional authority.

The Republican led Congress has abdicated their power and authority to the courts and to the Executive. It is time to restore the primacy of Congress, the representatives of the people. In Federalist #51, James Madison wrote “In republican government, the legislative authority necessarily predominates” (Source). Legislative supremacy was a long tradition in England after the Glorious Revolution of 1688. By its nature, a legislature has several internal controls. The Executive and Judiciary do not. Why? Those two branches were never meant to become as powerful as they have. It is time for the Congress to undo that. That is the why of the problem. The how is a matter of deliberation but the how is not possible until both parties in Congress can agree on the why. On that note, I hope to see you next week.

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Image: Beach Scene by James McNeill Whistler, 1896. Public domain (Source)