William and Mary Law School

Van Alstyne Celebrates Living Constitution

Like the cambium rings of the giant redwood trees in northern California, amendments to the U.S. Constitution indicate growth in a living-and evolving-document, William & Mary law professor William W. Van Alstyne told an audience on Sept. 16.

"The image I have of the living Constitution is that of the California redwood-at its best-with these cambium rings," said Van Alstyne, one of the country's foremost constitutional law scholars. "When the redwood refuses to add a cambium ring, you know it's dead."

Van Alstyne's presentation was precipitated by a new law passed by the U.S. Congress last year that requires educational institutions that receive federal funding-including public colleges and universities such as William & Mary-to present a program on the Constitution. The law does not specify, as Van Alstyne noted to the audience, that the program specifically must glorify the Constitution. The only specific requirement is that an educational program on the Constitution be held each year as a way of commemorating the Sept. 17th, 1787 signing of the Constitution, Van Alstyne said.

"There is some irony here," said Van Alstyne, whose presentation was titled "Some Reflections of the World's Oldest Constitution and How Congress Chose to Honor It." "They chose to honor it by saying hold these meetings or else lose your federal funding."

More than 100 people attended Van Alstyne's lecture, which included a variety of topics related to the world's oldest-and shortest-constitution. Van Alstyne discussed the confirmation process of Supreme Court Chief Justice nominee John G. Roberts, and what he called a "nightmare ordeal" process nominees must go through to be confirmed.

"The amount of time and intensity and interest is all relative to our television age," said Van Alstyne, pointing out that the 1962 U.S. Senate confirmation hearing for the late Justice Byron White lasted all of 11 minutes. Today, Van Alstyne said, members of the Senate Judiciary Committee spend the majority of the confirmations hearings delivering speeches rather than actually asking questions of the nominee.

"That is a television phenomenon," he said. "Whether that is a good thing is a matter of opinion."

Van Alstyne provided each member of the audience with a pocket copy of the Constitution and discussed how it was amazingly "thin" in size compared to international constitutions such as those of China and the former United Soviet Socialist Republics (USSR). While the U.S. Constitution includes just seven articles and 27 amendments, the constitutions of China and the former USSR included 138 and 165 articles, respectively. But the difference between these constitutions, he added, was how the public viewed them. In China and the former USSR, the documents were looked at as only government propaganda that could not-and would not-be challenged in court, he said.

Van Alstyne said there are two competing views of the "living Constitution" of the United States. One view is that judges can keep it up to date by being creative in interpreting the document based on society's changing values and ideals. That view, however, treats the Constitution as the Dead Sea Scrolls-"as if God spoke and he went away and we can't amend it," he said.

"The Constitution should not be the Dead Sea Scrolls," he said. "The proof of the living Constitution is its amendments, or its cambium rings."