On #PiDay, let’s celebrate the Pi of law … The Constitution

Posted on 03-11-2016 by
Tags: Constitution , Top Stories


Two things about Pi. As an irrational number:

  1. it has an infinite number of digits; and
  2. it doesn’t settle into an infinitely repeating pattern.

Sort of like our Constitution.* Much like Pi, the Constitution:

  1. has an infinite number of interpretations; and
  2. doesn’t settle into an infinitely repeating pattern (of interpretations).

An Infinite Number of Interpretations

To think of the Constitution as anything less than Pi-like – to frame it with finiteness – collides headlong into its basic construction. What began with twenty-three articles was eventually reduced to seven by the Committee of Style and Arrangement, which included James Madison, William Samuel Johnson, Gouverneur Morris, Rufus King and Alexander Hamilton. As styled and arranged, the Constitution was meant to be flexible … if not infinitely flexible. As Hamilton biographer Ron Chernow notes:

It is hard to believe that the Committee … took only four days to burnish syllables that were to be painstakingly explicated by future generations. The objective was to make the document short and flexible, its language specific enough to constrain abuses but general enough to allow room for growth.

So the Constitution, as constructed, was meant to flex and grow with future generations. Like Pi, this flexibility - from generation to generation - empowers “an infinite number of” interpretations.

No Infinitely Repeating Pattern

Also like Pi, the Constitution doesn’t settle into an “infinitely repeating pattern” of interpretations. One can argue that judicial precedent mandates repetition of settled law, but this repetition crumbles as the facts/centuries change. The First Amendment precedent of 100 years ago won’t necessarily repeat when applied to Apple’s present-day argument that software code is speech.

Another reason the Constitution won’t tolerate an “infinitely repeating pattern”: our interpretive tools are like putty. Take for example originalism, which champions a constitutional interpretation that’s fixed at the time of enactment. “At the time of enactment” is malleable; it encompasses distinct and separate questions about meaning, intention and understanding. As noted by Jack Rakove in Original Meanings, originalism raises questions about:

· What the Constitution originally meant;

· What the framers originally intended; and

· What the ratifiers originally understood in ratifying the Constitution.

As if bewildered by these very questions, Supreme Court Justice Robert Jackson had this to say about originalism:

Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other.**


The Constitution & Math: Metaphysical Brothers

Mathematicians may clamor that I’ve hijacked their princely Pi and fed it to the legal wolves. My apologies, for I know Pi Day is something akin to a math holiday (my mathematician son went so far as to wear a Pi shirt in celebration).

The Pi/Constitution comparison might sound mathematically sacrileges, but mathematicians, put down your swords. Math and the law aren’t so different. Consider what the late Shakuntala Devi, India’s "human computer", had to say about math:

Without mathematics, there's nothing you can do. Everything around you is mathematics.


Change “mathematics” to “the Constitution” ...

Without the Constitution, there's nothing you can do. Everything around you is the Constitution.

... and you’ve written the universal truth about our liberties.

 

* But not “irrational” … calling the Constitution “irrational” would be blasphemous in my legal opinion.

** Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (U.S. 1952) (Jackson, J., concurring).

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