The U.S. Constitution: Living, Breathing Document or Dead Letter?
In the concluding paragraph of my article about President-elect Obama’s constitutional philosophy, I opined: “Our Constitution has been terminal for a long time.” President Obama’s nomination of Sonia Sotomayor to the Supreme Court provides a timely opportunity for me to explain what I meant.
Liberals and progressives believe that the Constitution is a living, breathing document that should evolve with the times. They want Supreme Court justices to be flexible in interpreting the Constitution and adapting 18th-century language to 21st-century applications. Conservatives, on the other hand, are said to believe in “the original intent” of the Constitution. They oppose Supreme Court justices’ creative interpretations of the Constitution.
It is unfortunate that the fundamental difference in constitutional philosophy—what used to be called “loose construction” (favoring expanded government powers) vs. “strict construction” (favoring limited government powers)—has been cast in these terms. The left cleverly has employed a winning straw-man argument—a truism—in asserting that America should not be trapped by the past. Of course we shouldn’t. By contrast, paying homage to the Founding Fathers, and invoking their “original intent” of the Constitution, makes the right seem backward-looking.
If today’s Americans knew their history better, they would realize how wise the Founding Fathers were, and that we depart from their principles of governance at our peril. Nevertheless, the founders themselves would heartily agree with the left that times change, and so do constitutions. That is why they included a provision in the Constitution for amending it.
Constitutional mischief occurs when ambitious, impatient politicians appoint activist justices who willfully defy, disregard, and reinterpret the Constitution, rather than insist that it be changed lawfully, i.e., through the amendment process.
Conservatives rightly oppose such judicial activism. But the right’s focus shouldn’t be so much on trying to preserve an 18th-century worldview that—for all its wisdom—included treating women and racial minorities as less-than-full citizens. Instead, conservatives’ main argument should be to insist that Supreme Court justices uphold the principle that all laws and policies conform to the letter of the Constitution. If 1780s-vintage phraseology is ambiguous or opaque to modern usage, then amend the wording to make explicit its objective meaning; don’t let nine people (actually, five) divine implicit, subjective meanings as if the Constitution were so many tea leaves. Such judicial malfeasance over many decades has led to laws, policies, and government programs that clearly contradict the plain language of the Constitution.
Here are some examples:
1) Article I, Section 8, Paragraph 5 of the Constitution grants Congress the exclusive authority “to coin Money [and] regulate the Value thereof.” Article I, Section 10, Paragraph 1 stipulates, “No State shall coin Money; … make any Thing but gold and silver Coin a Tender in Payment of Debts.” When is the last time your state income tax refund was payable in gold or silver coin? We all use unconstitutional money. (Eventually, we will suffer the pain of hyperinflation, just as the founders did during the Revolutionary War due to the continental dollar debacle, despite our founders’ best effort to spare us that hell.)
2) The Tenth Amendment plainly states, “The powers not delegated to the United States [i.e., the federal government] by the Constitution … are reserved to the States respectively, or to the people.” Article 1, Section 8 enumerates the several powers of the United States government. No authority is given there for government programs in agriculture, education, energy, health, housing, etc. The Constitution was never amended to authorize these unconstitutional federal activities.
3) Both the preamble and Article 1, Section 8, stipulate that Uncle Sam is to perform only those few functions that provide for the “general welfare.” There is no constitutional authority for “special interest” legislation, yet the latter comprises most federal action today.
Clearly, the plain language of the Constitution has not kept ambitious officeholders from expanding their powers. Those who have regarded the constraints of the Constitution as inexpedient have simply ignored them. This should alarm any Democrat or Republican who values liberty. If the Tenth Amendment can be bypassed today, who is to say the First Amendment (free speech, religious freedom, etc.) won’t be trampled underfoot tomorrow?
The egregious examples of constitutional mutilation cited above are the fruit of the left’s doctrine that the Constitution is a living, breathing document. There is grim irony in this. Treating the Constitution like a living, breathing document has rendered it a dead letter. A Constitution whose provisions can be selectively ignored is a weak guarantor of anyone’s rights. We are no longer governed by the impartial, objective rule of law, but by partial, subjective and capricious men and women. Justice has given way to privilege; our constitutional republic has decayed into a dangerous democracy; the primacy of individual God-given rights has been supplanted by the primacy of government power.
Going forward, we may wonder which of the three branches of government is most likely to slow the expansion of government power by honoring the letter of the United States Constitution. President Obama and the executive branch? The Pelosi/Reid Congress? Hardly. And with one more Obama appointment, neither will the Supreme Court. Sad to say, there will be no brakes left to prevent a constitutional train wreck.
Dr. Mark W. Hendrickson is an adjunct faculty member, economist, and contributing scholar with The Center for Vision & Values at Grove City College.
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The ironic part of all of this is that the Founders realized that in time the Constitution would have to be updated and changed to fit the times. To do this they enacted Article V. The problem is the government doesn't want to obey Article V or take the time to amend the Constitution in order to make the Constitution a "living" document. The liberals' term only is valid IF the Constitution is conformed to the times by amendment.
But neither conservative or liberal is really willing to change the Constitution by amendment. The usual complaint is the process is too slow–which it was intended to be so as to bring harm to the Constitution by hasty, or ill considered amendments and to ensure a sufficient mass of the populace truly wanted the change the amendment was intended to create.
The problem is however that the states, who empowered to apply for a convention under the terms of Article V to propose amendments to the Constitution appear not to have gotten the memo regarding not changing the Constitution by means of amendment, specifically using the convention method to do so thus circumventing the government which clearly not inclined to obey the Constitution and change it by amendment.
In all, all 50 states have submitted 750 applications, far in excess of the 34 required to cause Congress to call a convention. Many of the issues discussed above and elsewhere as to problems of this country have already been addressed by the states in the form of amendment issues submitted in the applications, some 21 issues in all ranging from initiative, referendum and recall amendment to repeal of federal income tax to review of Supreme Court rulings by the states.
Why no convention? Because Congress refuses to obey the Constitution and call one as required by the Constitution. That is not how this government nor this Constitution is supposed to work.
The applications can be read at http://www.foavc.org.
You write "But the right’s focus shouldn’t be so much on trying to preserve an 18th-century worldview that—for all its wisdom—included treating women and racial minorities as less-than-full citizens."
Excuse me??????
Can you please provide the name of exactly ONE person on the right: one politician, one radio talk show host, one commentator, one columnist, one writer on the right who is agitating for a return of chattel slavery and rescinding women's right to vote?
Just one?
Please?
Reading this Mark, I have to wonder if you’ve read the Patriot Act or S. 1959.
Both have broad bipartisan support, and both take away our Constitutional rights.
Practically anyone can be labeled a terrorist under S. 1959 and can be stripped of all Constitutional protections, jailed indefinitely without charges, denied access to an attorney, and denied a trial by jury.
Looks like a runaway train to me.
This is an oustanding editorial. I wish more people could wake up, read some history, and see that we are heading towards the same tyranical nightmare that our founding fathers worked so hard to keep us safe from.