Trashing the Constitution: The Living Document Con

Is constitutionalism akin to blind faith? Some statists certainly think so, as they have called the position “constitution-worship.” In light of this, what should we call those who lack that “faith”? Given that they don’t believe in the Constitution, and that the document is the supreme law of the land, can it be said that they don’t believe in law? Are these people, who are often atheists, also “alegalists”?

Whatever you call them, they’re more visible and brazen than ever. Writing in Time magazine recently, Richard Stengel insisted that our Constitution “must accommodate each new generation and circumstance.” Georgetown professor Michael Dyson said recently, “When I talk about the document being living and vital, I’m talking about the interpretation of it.” And these appeals are buttressed by the notion that our founding document is fatally flawed. For example, Harvard Law School professor Michael Klarman wrote, “For the most part, the Constitution is irrelevant to the current political design of our nation.” And CNN’s Fareed Zakaria recently opined, “The United States Constitution was … drafted in a cramped room in Philadelphia in 1787 with shades drawn over the windows” — which, presumably, is worse than an idea coming out of his cramped head.

Of course, it sounds oh-so sophisticated to speak of a “living, breathing document.” But if someone is trying to sell us on the idea that our national rulebook shouldn’t matter, we should ask two questions: Who benefits from ignoring the rules? And what is the alternative to following them?

The best way to answer the first question is to apply the relevant concepts to something everyone will understand.

In our legal system, the “umpires” are the judges, and the rules are the Constitution and laws that accord with it. And it doesn’t matter if the judges dislike them; it’s not their place to make the rules “live” anymore than it’s the place of a baseball umpire to forbid base-stealing because one team has faster runners.

Where does the Constitution say this? I can find nothing in the Constitution that limits or in any way regulates what processes the SCOTUS uses to interpret Constitutional Law. As far as I can tell, they are completely independent and unaccountable.

If judges want to apply liberal construction, ala Justice Breyer, there is nothing in the Constitution saying that they cannot do it that way. They are an independent branch with jurisdiction. Therefore, it seems to me, loose construction is constitutional.

They [the courts] will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution that can correct their errors, or control their adjudications. From this court there is no appeal. And I conceive the legislature themselves, cannot set aside a judgment of this court, because they are authorised by the constitution to decide in the last resort. The legislature must be controlled by the constitution, and not the constitution by them. They have therefore no more right to set aside any judgment pronounced upon the construction of the constitution, than they have to take from the president, the chief command of the army and navy, and commit it to some other person. The reason is plain; the judicial and executive derive their authority from the same source, that the legislature do theirs; and therefore in all cases, where the constitution does not make the one responsible to, or controllable by the other, they are altogether independent of each other.
The judicial power will operate to effect, in the most certain, but yet silent and imperceptible manner, what is evidently the tendency of the constitution: I mean, an entire subversion of the legislative, executive and judicial powers of the individual states. Every adjudication of the supreme court, on any question that may arise upon the nature and extent of the general government, will affect the limits of the state jurisdiction. In proportion as the former enlarge the exercise of their powers, will that of the latter be restricted...
...When the courts will have a precedent before them of a court which extended its jurisdiction in opposition to an act of the legislature, is it not to be expected that they will extend theirs, especially when there is nothing in the constitution expressly against it? And they are authorised to construe its meaning, and are not under any control.
This power in the judicial, will enable them to mould the government, into any shape they please.
Brutus #11, The New-York Journal, January 31, 1788

brilliant analysis

I beg to differ. The analogy is flawed.

In a better analogy to baseball, the States would be the owners, the constitution the rules of the game, the federal judges umpires and the players the departments of the federal government. With this we can see more clearly the flaw in the argument. The problem is not that the constitution has been interpreted into irrelvance (a fact we are more than happy to stipulate as true.) The problem is that the constitution was never designed to constrain the federal government in the absence of sovereign states.

So to understand our circumstance through an analogy to baseball, imagine a world where the commisioner were allowed to rule unconstrained by the owners. He could set the rules of the game, players salaries, decide in which cities the teams could play. In short, he exercized all the powers the nominal owners had surrendered. In such a world would it matter to argue over how the umpires interpreted the rules set by the usurper?

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