I was honored to preside last Monday over this year’s Constitution Day lecture given by John Palfrey, Henry N. Ess III Professor of Law and Vice-Dean for Library and Information Services at Harvard Law School. He spoke eloquently about the Internet’s contributions to the worldwide flourishing of democracy, and shared his research detailing how oppressive regimes often seek to censor electronic communication. His insights marked a perfect follow-up to President Herbst’s passionate inaugural lecture stressing the role of universities in training active, engaged citizens. Although some doubt the wisdom and even the constitutionality of a federally mandated holiday celebrating our Constitution, it’s hard to contest the value of reflecting upon our founding document.

Let’s start by dispensing with the tweedledee/tweedledum character of constitutional debate that often dominates popular discussion. Ask yourself which of these two well-rehearsed approaches to constitutional law you find attractive. In the first view, judges are charged with comparing actions of the legislative or executive branch to check for conflicts with the written constitution. The constitutional text is accepted as fixed and inviolable, and judges are to strive faithfully to interpret its language. Judging is an exercise in fidelity to what has been written in the past, and citizens unhappy with the results are free to attempt an amendment process. Supporters of this view often stress the wisdom of adhering to “the rule of law” lest judges with greater discretion twist the constitution to suit their political or personal predilections.

The second view starts with the idea that no written document can anticipate all future contingencies. When the framers guaranteed the right to bear arms, they could not have imagined contemporary weaponry. When they enshrined protection for freedom of speech and of the press, they had no idea what damage could be inflicted with modern electronic communication. Applying constitutional text thus requires considerable sensitivity to changed conditions. Moreover, textual interpretation contains its own riddles. Consider situations where constitutional language manifestly conflicts with actual practice at the time of ratification. Most famously, schools throughout the United States were heavily segregated by race when the 14th amendment’s guarantee of equal protection was enshrined. So the Supreme Court’s greatest decision of the 20th century in Brown v. Board of Education required the justices to ignore what the framers might have meant in favor of the principle to which they committed themselves and our nation. This style of constitutional law often refers to our founding text as a “living, breathing document” that must be read with an eye toward justice from a contemporary point of view.

Now, if your answer, upon reflection, is that you find both of these views of constitutional law attractive, then go directly to the head of the class. Of course they are. Should we deny compensation to a homeowner after the government intentionally flooded her land simply because the home was destroyed rather than “taken” as required by the constitutional text? Or do we prefer that the court be a bit flexible in reading the text with its purpose in mind? How though would we feel about a Court concluding that Arnold Schwarzenegger or Jennifer Granholm could serve as President even though each was born in a foreign country? The Court could argue that the spirit of equal protection and the service of these individuals as governors should transcend the explicit constitutional ban. Yet I doubt many would be persuaded. In short, we want courts to be faithful to the text and flexible to respond to changing conditions.

Here’s where it gets tricky. We all understand that it’s quite possible to manage an institution that adheres to conflicting ideals. If I have a contract with you to buy your car for $5,000 but just before delivery car prices sky rocket, courts will protect me against your effort to hold out for more. If you say that our purpose was to reach a fair deal and the contract price is no longer fair, you will not likely succeed. But if I agree to rent your apartment for the day for $1,000 so I can see the Macy’s parade, and the parade is cancelled a month in advance, a court might let me out of the deal, even if the contract had no provision to that effect. It’s judgment that tells the cases apart.

So too our county is well served by a Supreme Court that understands the value of “fidelity to text” and the need for a “living and breathing document.” We pray for judges who choose meaningfully between these approaches depending on the circumstances of the individual case. Yet what we fear is judges who manipulate the two approaches to reach conclusions based on ideology more than justice. It’s not at all easy to tell these apart. What this means is that our most venerable legal tradition can thrive only if we build a culture where we trust each other to strive for honest interpretation. And this brings us back to President Herbst’s inaugural lecture. Universities have many roles, but none more important than encouraging honest exchange of ideas concerning matters of public importance. Building a University in this spirit would make Constitution Day a cause for celebration for years to come.