Daily Times

Last week I had an interesting discussion with an old American friend of Pakistani origin on problems facing Pakistan. When I pointed out some of the problems faced by the US especially after a series of reactionary laws on the abortion issue, she waxed eloquent about the inherently superior founding principles of the US Constitution. As someone who has drunk deep at the fountain of constitutional law, I tried to explain to her that any constitution is only as good as the judges who interpret it and that there was no such thing as founding principles. I explained that American founding fathers, ultimately white colonial settlers most of whom were slave owners, could not have imagined providing principles that governed all generations to come. Many of them freely admitted it.

Despite the first 10 amendments – the bill of rights as it were- US saw slavery, Jim Crow laws and religiously inspired blue laws. Many of them remained on the books till the mid to late 20th century. This was because many lawyers and judges did argue from time to time that the constitution had to be interpreted according to the original intent of the founding fathers and framers of the constitution. Therefore in 1857 the US Supreme Court ruled, by a majority of 7 to 2, that Mr. Dred Scott, a slave, could not claim US citizenship because he was of African ancestry. Chief Justice Taney ruled in the landmark case that the US Constitution did not confer citizenship on people of African descent and therefore Mr. Dred Scott could not claim freedom as a matter of right. Taney had come to this conclusion on the basis of the theory of Originalism and he was right according to it. The founding fathers of the US by and large had not intended to confer citizenship on anyone other than the white settlers and arguably of Christian belief. Even the word “religion” was debated and while Thomas Jefferson (who was not amongst the framers of the Constitution) notably did include other religious traditions in his conception of religious liberty, it was argued with some justification that the free exercise of religion clause of the first amendment was limited to Christianity and possibly Protestant Christianity. It was not until the 14th Amendment to the US Constitution (1868) that citizenship was finally extended to everyone else. It was not until the 19th Amendment passed in 1920 that women got a right to vote – something which denied to them despite the so-called inherently superior founding principles.

The alternative theory – one favoured by the liberals- is that the Constitution evolves with time and takes on new meanings. This is the theory of the living constitution. It is broadly synonymous to the principle of Ijtehad in Islamic legal tradition

The theory of Originalism holds essentially that constitution must always be interpreted according to the original intent of the framers and that if there is need to change the constitution, there is always the amendment process. This poses a rather large problem when you consider the extremely difficult process that the US Constitution sets out for amendment. Unlike the unwritten British Constitution which can easily amended, the US Constitution requires 2/3rds majority in both houses of Congress followed by a ratification of 3/4th of all state legislatures. There is also a convoluted method of constitutional convention but none of the amendments have been passed that way. In its 230-year history, US Constitution has been amended only 27 times and 10 of those were the original bill of rights amendments passed soon after the Constitution was made.

This brings us to the burning issue of the anti-abortion laws that are being proposed and passed. The conservatives in the US are passing pushing forth with these laws with only one intention – so that they may be challenged before the Supreme Court. Supreme Court has been packed with Originalists and a majority ruling will likely overturn Roe v Wade, the famous 1973 case. Roe v Wade had held that the 14th Amendment accorded protection to a woman’s right to decide whether or not to have an abortion. The Supreme Court in 1973 had expanded the meaning of the due process clause and privacy to come up with its reasoning. Going by the original intent of the framers of the 14th Amendment, this decision would not hold up. Hence with Originalists in the driving seat in the US Supreme Court, the conservatives want to undo Roe v Wade. This is what the debate is about really and it is likely that they will succeed. The founding principles now do not seem as attractive as some would want to make them out to be.

The alternative theory – one favoured by the liberals- is that the Constitution evolves with time and takes on new meanings. This is the theory of the living constitution. It is broadly synonymous to the principle of Ijtehad in Islamic legal tradition. In the case of Islam though, our ownOriginalists (no doubt with good intentions) had closed the door on Ijtehaddefinitively about 800 years ago. They had also discounted the use of Greek knowledge and logic leading to decay which ultimately led to where the Muslim world is. Hence what you have now is an ossified shell of a once vibrant and dynamic religion. The same thing is likely to happen to the US Constitution if the Originalists prevail. When you speak of original intent it all comes down to interpretation of history. More often than not it leads to march of humanity being brought to a halt in so far as that jurisdiction is concerned. The debate on the founding principles of the US may well be the undoing of the progressive and creative spirit that made what the country is today.

The writer is a freelancer