Adam J. MacLeod writes on the Constitution:
I argue that the terms of our Constitution are intelligible when understood in the context of the centuries-old legal tradition from which they are taken. Today I explain why efforts to render intelligible the U.S. Constitution’s terms without reference to the tradition fall short. I examine four efforts to interpret the Constitution and argue that they succeed only insofar as they point to important aspects of our legal tradition. In tomorrow’s conclusion I describe the legal tradition that supplied our constitutional terms and how those terms can be understood and used in both legal and civic discourse. …
He explores four interpretive schemes: the Novelty Constitution, the Enduring Constitution, and the Axiomatic and Natural Rights Constitutions. MacLeod concludes his analysis in his follow-up piece:
The view that the Constitution evolves as judges invent new understandings of its terms falters, for the expansion of judicial power comes at the expense of judicial legitimacy. The text of the Constitution is not alone sufficient because the Constitution does not define its own terms. Interpretive methods that look to natural law and natural rights are grounded in the Constitution, but they are quite limited in practice. The Constitution is not, in Edward Corwin’s words, “a mystic overlaw.” The law of reason on which it is grounded requires specification in rules and judgments.
In today’s essay I argue that those rules and judgments are packed into the Constitution’s terms. For many of the terms of the Constitution are legal terms, pulled out of the common law. …
So, our Constitution is both particular and universal, both young and ancient. Its rules and specifications change over time, but they were designed to change in keeping with the artificial reason and peculiar institutions of the common law. Our Constitution is both much younger and much older than 231 years.
The common law that our Constitution declares and the common-law rights and duties that it secures have a thousand-year history in England and the United States. And the common law incorporates elements that preceded it by several centuries more. Aspects of our Constitution can be traced back to ancient Babylon, Athens, and Jerusalem. In a sense, our constitution is universal.
Yet our Constitution is also not universal in an important sense. It is ours. It reflects our commitments as a people. We have chosen those norms and institutions that enable our people to flourish, such as private property and the jury trial. We have rejected those that suppress human creativity, such as monarchy. And we have abrogated those that are unjust, such as slavery and racial segregation.
We continue to disagree about matters of civic importance. And today our disagreements are often emotional and expressed with rancor. But understood as an expression of the common law commitments on which it was built, our Constitution still supplies common terms in which we might re-transform our civic discourse into something rational and productive.
Worth reading, especially for non-attorneys interested in making sense of the often sharply different perspectives on what the Constitution really is.