The “Living Constitution”: Trojan Horse of Progressive Politics

self | August 28, 2014 | Jean F. Drew

[betty boop]

Progress: “Forward or onward movement towards a destination…. Development towards an improved or more advanced condition.”

Progressive: “Happening or developing gradually or in stages.” [Compare with Darwinist evolution theory.] “(A person or idea) favouring social reform; Favouring change or innovation.”

Progressivist: A person who is “modern, liberal, advanced, forward-looking, forward-thinking, go-ahead, enlightened, enterprising, innovative, up-and-coming, new, dynamic, avant-garde, modernistic, disruptive; radical, left-wing, reforming, reformist, revolutionary, revisionist”

So much for definitions provided by the Oxford Dictionary of the English Language .

It seems to me there is a whole lot of pure hope (and hype) associated with the idea of “human progress.” I, for one, cannot look at human history and say that the human condition ever “progresses”; that is, it doesn’t look to me like it ever “develops towards an improved or more advanced condition.” Interventions from “outside” — as in “progressive” theories of the State — do not work, mainly because they do not have a rational understanding of the human being. Moreover, it seems modern human beings are determined to ignore the history of actual, universal human experience, of the human condition, which as noted doesn’t seem to “progress” much over time. Indeed, man usually refuses to learn the lessons of his own history; so what can be the basis of such putative “progress?”

And yet it seems that we’re all supposed to be “progressivists” these days. Or at least, this seems to be what the intellectual and cultural elites— in academia, the charitable institutions, the popular culture, and the mass media — believe and ceaselessly promulgate. Moreover, they relentlessly target those who do not agree with them for scorn, personal abuse, vituperation, even lawsuits.

So much for the possibility of civil, rational, informed public discourse regarding topics essential to the preservation of historic American liberties, which the U.S. Constitution undertakes to guarantee.

But there’s the rub! The Framers Constitution was designed primarily for the purpose of limiting the power and reach of the federal government, lest it disparage and invade the unalienable — because God-endowed — natural rights of the people, by whose consent that government exists in the first place; not to mention the historic sovereign liberty of the several states.

But an activist, “progressive” government knows that it cannot pursue revolutionary change within the bounds of the Constitution the Framers wrought. Indeed, the Constitution puts up all kinds of obstacles to this type of change. It puts up a roadblock to all sudden innovations, which are usually urged according to passing fashions and/or the pleadings of various interest groups for their own benefit at the expense of others’ benefit. It is, as our sitting president notes, “a charter of negative liberties” — it tells the federal state what it cannot do, not what it can do; and leaves pretty much all else up to the people and the several states to resolve for themselves.

Thus any “original intent” understanding of the federal constitution is death to progressivist projects. This will not do! So Progressive American presidents and their administrations — Obama is merely the latest — who chafe under “original intent” constitutional restrictions have tended to gravitate to an entirely different legal theory of the U.S. Constitution: The Living Constitution.

Perhaps the best developer and explicator of this new understanding of the Constitution was our second Progressive president, Woodrow Wilson.

His Wiki entry begins:

Thomas Woodrow Wilson was the 28th President of the United States from 1913 to 1921 and leader of the Progressive Movement. He served as President of Princeton University from 1902 to 1910 and was Governor of New Jersey from 1911 to 1913.

A whole lot of constitutional mischief was accomplished during his tenure in the Oval Office. (E.g., the creation of the Federal Reserve, the graduated income tax, and popular election of senators.)

What is most noteworthy about Wilson is that he, prior to becoming governor of New Jersey, had been a life-long academic, a professional intellectual. He earned doctorates in both history and political science at Johns Hopkins University. Evidently his meditations on the federal Constitution led him to conclude that it is a “cumbersome instrument unfit for the government of a large and vibrant nation” (according to the editor of The U.S. Constitution: A Reader, a wonderful collection of source documents regarding the American Founding recently published by Hillsdale College Press).

He reasoned: When the Constitution was designed and ratified, America was largely an agrarian society. (Jeepers, they didn’t even have telephones back then! So, how good could their laws be? They're simply not "up-to-date!") But now that America is an industrial society, human social relations and economic needs have drastically changed — and human beings need government to help them “adjust” to the new necessities introduced by this profound social and economic transformation.

Thus good government must be given a more “activist” role — yet one which plainly undermines and even outright contradicts the Framers’ original intent.

In Wilson’s view, America needs an up-to-date guiding rule of constitutional governance, not an ossified relic of the American past wholly inapplicable to the challenges of modern society. Rather, Americans are to be persuaded that it is in their interest to put faith in the federal government as the body that can address and supply their needs in an ever-changing, increasingly challenging world. The undisclosed premise is that human beings lack all power or judgment to make such adjustments on their own, in their own personal sphere. All their unalienable rights, and the guarantees of the Bill of Rights notwithstanding, citizens are helpless to navigate the rapidly “evolving” social/political/economic situation on their own; rather, they need experts to guide them.

The way Wilson defends this notion — in his memorable article, “What Is Progress?” [published in his The New Freedom, New York: Doubleday, 1913] — strikes me as a splendid demonstration of the ancient rhetorical art called sophistry. So it is not surprising that in his argument, he cultivates at length a sense of grievance and “discontent” in his reader; i.e., the public at large.

He opens up his argument with an undeniably truthful observation: that

…in every generation all sorts of speculation and thinking tend to fall under the formula of the dominant thought of the age.

On this basis, his next statement follows, as if necessarily:

For example, after the Newtonian Theory of the universe had been developed, almost all thinking tended to express itself in the analogies of the Newtonian Theory, and since the Darwinian Theory has reigned among us [interesting choice of words], everybody is likely to express whatever he wishes to expound in terms of development and accommodation to environment [e.g., to what Wilson calls “progress”].

Well, I daresay Wilson certainly believes this! For he gives a splendid example of it himself.

But the pièce de résistance is in his conclusion from these premises: The Framers’ Constitution is hide-bound in superannuated Newtonian principles, wherein local cause and effect plus gravity account for everything — as if everything that exists, including man, the world and society, is essentially a machine, in that it runs by wholly mechanistic principles. Indeed, Wilson mysteriously seems to conflate "separation of powers" and "checks and balances" as phenomena occurring in a "gravitational field," as if such things were purely material phenomena. Which it should be clear to any rational person, they are NOT.

The trouble with [this] theory [which Wilson attributes to the Framers, but for which he adduces no supporting evidence] is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not Newton….

At which point, I recall some things I already know well from first-hand experience, or can infer from reliable evidence I have seen:

(1) The first takes the form of a question: In what way are we supposed to believe that a bunch of agrarian types — who derive their sustenance from just and prudent stewardship of the blessings that come to them from living Nature — would resort to Newtonian, mechanistic principles to explain everything that could happen to man and society? At a time when the most sophisticated instruments for the conduct of human existence were hand tools, or horse- or oxen-drawn plows? Methinks Wilson has embroiled himself in a serious anachronism here.

Newtonian mechanistic principles apply only to the material world. But if any group of secular men in modern times ever declared more forcefully than the Framers did, that man is more than the mere matter that constitutes his body during his mortal existence, I have yet to hear from them.

(2) As for Darwin — what did Darwin ever have to say about the emergence of life per se? He takes life for granted, as a “given”; then takes it from there. He doesn’t speak of the “why” of life; he only tries to account for how it changes — evolves, or progresses — once it’s already “there.” This is description, not explanation.

But forgive me if it seems that a mere “description” of this kind totally evades a question the answer to which inquiring minds want to know: How did the first living cell manage to emerge from inorganic matter, such that it could be, in effect, the common ancestor of all life on this planet, encompassing an evolution from amoebae and bacteria right up to homo sapiens sapiens, over an inestimable period of time that is usually, conveniently regarded as unbounded, eternal?

I gather it takes all of eternity for a random process like this to produce anything useful to human understanding. Which, if so, probably we humans are still waiting for information that is unavailable as yet. Meanwhile, I guess we humans, we Americans, are to accept as our fate the condition of persons waiting, with bated breath, for Godot to show up and explain it all to us ….

Someday. It seems that this “Godot” person is some kind of academic, in Wilson’s case a sort of “scientist,” who has managed to acquire power for himself, at the expense of everybody else.

This is the sort of thought, or rather non-thought, that justifies the theory of The Living Constitution, and the total extinction of the Framers’ Original Intent….

It seems the crucial difference between the Framers and President Wilson is that the Framers “built for the ages,” while Wilson was invested in a theoretical aggrandizement of limited, temporal powers that could be applied to remediating negative exigencies affecting the people due to discrete changes of era, technology, and culture.

Yet by Wilson’s own reasoning, Darwinism itself is the creature of an era — one contemporaneously aligned with the Industrial Revolution. Now that we live in a post-industrial society, in the so-called Information Age, does this mean that The Living Constitution is joining the ranks of the obsolete, just as much as the (putatively) Newtonian-driven, original-intent Constitutional view is regarded as already obsolete by Wilson in his own time?

I find any such assertion lame, unfounded. The Framers were working with eternity in mind — as the Preamble of the U.S. Constitution makes clear, to any discriminating reader who bothers to read the Preamble these days.

The Framers gave us a rock to stand on. They had a profound understanding of human nature and its universal problems. They weren’t nominally interested in perfecting the tools of statecraft, or in personal aggrandizement of power. Certainly they were not trying to construct any kind of utopian society. And they didn’t regard mankind as cattle that needed masters for their own good….

For the Framers man, created imago Dei, stands in first place, because he is directly under God, possessing God-invested, inalienable rights of Life (with the accompanying natural right of self-defense); Liberty (of personal movement, of association, of thought, of conscience, of religion); and Pursuit of Happiness (the just acquisition, preservation, and deployment of personal property, which is the prime means of securing both life and liberty, which happen to be the things a human being requires to be "happy.")

The Living Constitution is a rebuke to, and the implacable enemy of, what the Framers sought in designing a social polity under the rule of law, by consent of the governed, with equal justice for all. It absolutely denies that inalienable rights are grants of God — largely because science has not yet been successful in putting Good into a petri dish, i.e., into a directly-observable situation. Since a widespread assumption nowadays is that God is “dead” anyway (largely because science cannot “find” Him), the only possible grantor of human rights is — wait for it! — the unfettered State, run by an elite, administrative body of experts….

I am reminded of a comment from Mark Twain, to paraphrase: Every “expert” is a total ignoramus, once you get him away from the subject in which he has been trained.

The Living Constitution may hold itself out to be a rational adaptation to the exigencies of the present “complicated” and “ever changing” social, political, and economic conditions that the Framers’ Constitution is utterly impotent to deal with. (Those “farmers” were pretty dumb compared to us, the Wilsonian, expert class, who are the enlightened, scientific ones, after all.)

To those who are still able to “smell a rat,” the Living Constitution appears as the death knell of American exceptionalism, of American liberty. We the People need to resist its incessant incursions against our sovereign liberties, and the destruction of our specifically American nation, our firm principles and way of life, with every fiber of our being.

[betty boop]

FYI. Hope we can have a good discussion about this subject matter. To me, it's critically important.

[betty boop]

FYI for my friends. All others completely welcome.

[DoughtyOne]

They think we have a "living" death penalty too...  those on death row just keep living, and living, and living, and living...


Ramirez's latest political cartoon LARGE VERSION 08/28/2014: LINK  LINK to regular sized version of Ramirez's latest, and an archive of his political cartoons.
In this political cartoon, Ramirez presents, "Burger King."

NINETY PRECENT OF THE FREEPATHON GOAL HAS BEEN MET.  Lets end this FReepers.
...this is a general all purpose message, and should not be seen as targeting any individual I am responding to...

[DoughtyOne]

I agree with you. They seem to think the initial document is merely a work of art. They do their best to render it’s tenets meaningless.

[Jacquerie]

Newton did not regard the laws of motion as his. He flat out stated that he discovered God’s laws.

In similar fashion, the Enlightenment philosophers acknowledged additional laws of God expressed in nature, which our Framers recognized as unalienable rights.

Truth is just that. The passage of time is irrelevant.

[Misterioso]

I recently finished reading Henry Mark Holzer's The American Constitution and Ayn Rand's "Inner Contradiction." It is a compendium of 'living constitution' Supreme Court decisions going back to its beginnings. If you a are a fan of Clarence Thomas, there are a lot of his arguments included.

[Personal Responsibility]

I enjoyed your article.

The one thing I rarely hear talked about regarding the Framers is their understanding of human nature. They understood - better than anything else - that ALL governments made up of men tended toward despotism. That the craven can find power in the law and bend it to their will.

That’s why the Constitution describes what the Government CAN’T do, rather than what it can do.

In your article you talk about the change from Newton (agrarian) to Darwin (Industrial) and now Information Age.

But through all that time the nature of governments of men to tend toward despotism has not changed. That’s why the original intent of the Constitution should be all that matters.

Until the nature of man changes, the Constitution should remain as written.

[Misterioso]

Forgot to include:

http://tinyurl.com/m7oj64o

[JRandomFreeper]

That’s why the Constitution describes what the Government CAN’T do, rather than what it can do.

I would have to disagree with that. Perhaps some of the amendments do, but they are far from the complete Constitution.

Article 1, Section 8 is a complete list of what the congress is authorized to make laws about. Those enumerated items, and nothing else, may they regulate.

That was avoided by the feds by twisting the 'commerce' clause and the 'general welfare' clause.

The founders writings made it very clear that the only powers the federal government were allowed were spelled out in the Constitution.

/johnny

[x]

For Wilson, Newton vs. Darwin represented the difference between the rationalistic-mechanistic and the vitalistic-organic. He wasn't talking about what Newton or Darwin actually said, but about the difference between constructing a system logically and rationally and deductively and a system growing up on its own and taking its own form.

Newton versus Darwin was a way of representing the difference between the age of the Founders (the Enlightenment before Enlightenment hopes were mangled by the French Revolution) age he grew up in (after the failure of some Enlightenment hopes in the disillusionment of the French Revolution) -- between the idea of forming a political system from first principles and letting one grow up around oneself.

Of course the irony is that we'd see Wilson as somebody mechanically trying to recreate society according to his own ideas, rather than someone letting it grow as it was inclined, but Wilson formed his ideas when he was still a young man and not quite so confident about increasing government power to achieve social ends. Wilson's thinking took the Burkean-Hegelian idea of organic development that was fashionable in his younger days and gave it a left-liberal twist, turning it into a support for activist government.

Wilson's presidency is already 100 years in the past, though. It's become part of American history and the history of American governance. After 100 years it's not something one can easily disprove and dislodge. That takes us back to Darwin. However an elephant becomes an elephant or a gazelle becomes a gazelle, it's hard to argue that the elephant should be a gazelle or to find someway to turn the one into the other. However valid or invalid Wilson's theory may have been a hundred years ago, the elephantine size of government has become a fact that's hard to get around or undo.

[loveliberty2]

Thank you for this post!

Perhaps the following essay, reprinted with permission, may be helpful for the discussion also.

Do We Have A Living Constitution?

"Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon them collectively, as well as individually; and no presumption or even knowledge of their sentiments, can warrant their representatives [the executive, judiciary, or legislature]; in a departure from it prior to such an act." - Alexander Hamilton

In the first of the eighty-five "Federalist Papers," Alexander Hamilton emphasized that:

... it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government fromreflection or choice, or whether they are forever destined to depend for their political constitutions on accident and force."

The Framers knew that the passage of time would surely disclose imperfections or inadequacies in the Constitution, but these were to be repaired or remedied by formal amendment, not by legislative action or judicial construction (or reconstruction). Hamilton (in The Federalist No. 78) was emphatic about this:

"Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon them collectively, as well as individually; and no presumption, or even know ­ ledge of their sentiments, can warrant their represen ­ tatives in a departure from it prior to such an act."

The Congress, unlike the British Parliament, was not given final authority over the Constitution, which partly explains why the judicial authority was lodged in a separate and in­dependent branch of government. In Britain the supreme judicial authority is exercised by a committee of the House of Lords, which is appropriate in a system of parliamentary supremacy, but, although it was suggested they do so, the Framers refused to follow the British example.

The American system is one of constitutional supremacy, which means that sovereignty resides in the people, not in the King-in-Parliament; and the idea that the Constitution may be changed by an act of the legislature-even an act subsequently authorized by the judiciary-is simply incompatible with the natural right of the people to determine how (and even whether) they shall be governed.

Unlike in Britain where, formally at least, the queen rules by the grace of God (Dei gratia regina), American government rests on the consent of the people; and, according to natural right, the consent must be given formally. In fact, it must be given in a written compact entered into by the people. Here is Madison on the compacts underlying American government:

• "Altho' the old idea of a compact between the Govt. & the people be justly exploded, the idea of a compact among those who are parties to a Govt. is a fundamental principle of free Govt.

• "The original compact is the one implied or presumed, but nowhere reduced to writing, by which a people agree to form one society. The next is a compact, here for the first time reduced to writing, by which the people in their social state agree to a Govt. over them." (In a letter to Nicholas P. Trist, February 15, 1830)

Neither civil society (or as Madison puts it, "the people in their social state') nor government exists by nature. By nature everyone is sovereign with respect to himself, free to do whatever in his judgment is necessary to preserve his own life - or, in the words of the Declaration of Independence, everyone is endowed by nature with the rights of life, liberty, and the pursuit of a happiness that he defines for himself. Civil society is an artificial person (constituted by the first of the compacts), and it is civil society that institutes and empowers government. So it was that they became "the People of the United States" in 1776 and, in 1787-88, WE, THE PEOPLE ordained and established "this Constitution for the United States of America."

In this formal compact THE PEOPLE specified the terms and conditions under which "ourselves and posterity," would be governed: granting some powers and withholding others, and organizing the powers granted with a view to preventing their misuse by the legislative, the executive, and the judicial branches alike. WE THE PEOPLE were authorized by natural right to do this, and were authorized to act on behalf of posterity only insofar as the rights of posterity to change those terms and conditions were respected. This was accomplished in Article V of the Constitution, the amending article, which prescribed the forms to be followed when exercising that power in the future.

• What THE PEOPLE were not permitted to do in 1787-88 was to deprive - or pretend to deprive - posterity of their natural right to do in the future what the founding generation had done in 1776. Nor could they, by pretending to delegate it to Congress, the President, or the Supreme Court, deprive them of their sovereign power to change the Constitution. Instead, that power was recognized in the Constitution's provisions in Article V.

The Framers had designed a constitutional structure for a government which would be limited by that structure - by the distribution of power into distinct departments, a system of legislative balances and checks, an independent judiciary, a system of representation, and an enlargement of the orbit 11 within which such systems are to revolve" And to the judges they assigned the duty, as "faithful guardians of the Constitution," to preserve the integrity of the structure, for it is by the structure (more than by "parchment barriers") that the government is limited. It would he only a slight exaggeration to say that, in the judgment of the Founders, the Constitution would "live" as long as that structure was preserved.

The Enduring American Constitution

Now, almost 200 years later, one can read Hamilton's words in Federalist No. 1 and conclude that, under some conditions, some "societies of men" are capable of "establishing good government," but that most are not. This is not for lack of trying; on the contrary, constitutions are being written all the time - of some 164 countries in the world, all but a small handful (seven by the latest count) have written constitutions - but most of them are not long-lived.

In September 1983, the American Enterprise Institute sponsored an international conference on constitution writing at the Supreme Court of the United States; some twenty-odd countries were represented. With the exception of the Americans, the persons present had themselves played a role - in some cases a major role - in the writing of their countries' constitutions, most of them written since 1970. Only the con­stitution of the French Fifth Republic predated 1970; and the Nigerian, so ably discussed and defended at the 1983 conference by one of its own Framers, had subsequently been subverted, much as the four previous French republican constitutions had been subverted. It would seem that many peoples are experienced in the writing of constitutions, but only a few of them - conspicuous among these the people of America - have an experience of stable constitutional govern­ment. In that sense, we surely have "a living Constitution." That is not, however, the sense in which the term is ordinarily used in the literature of constitutional law as shall be explored herein.

Treating The Constitution As A Thing Without Form or Substance: New Definitions Of 'Living'

In the language of many today, a "living Constitution" is not first of all one that is long-lived; rather, its longevity is a secondary or derivative quality which is attributed to its "flexibility" or better, its "adaptability." It is this quality " ­ adaptability" that allows it to be "kept in tune with the times," as the members of this school of thought sometimes say. According to them, a living Constitution is first of all a protean constitution - one whose meaning is not fixed, but variable.

In this respect, it is similar to the Constitution as understood by the "judicial power" school. Some judicial power advocates go so far as to say that, until the judges supply it in the process of adjudication, the Constitution has no meaning whatever. Here are the words of judge Lynn D. Compton of California, writing in 1977 in the pages of the Los Angeles Times:

"Let's be honest with the public. Those courts are policy-making bodies. The policies they set have the effect of law because of the power those courts are given by the Constitution. The so-called "landmark decisions" of both ofU.S. Supreme Court and the California Supreme Court were not compelled by legal precedent. Those decisions are the law and are considered "right" simply because the court had the power to decree the result. The result in any of those cases could have been exactly the opposite and by the same criteria been correct and binding precedent.

"In short, these precedent-setting policy decisions were the products of the social, economic and political philosophy of the majority of the justices who made up the court at a given time in history .."

So extreme a view of judicial power is not likely ever to be expressed in the official reports; there (perhaps in order to be dishonest with the public) even the most inventive judge will claim to be expounding the Constitution, if not its ex­plicit provisions then, at least its emanations, penumbras, or lacunae (Griswold v. Connecticut). What is of interest is that a judge should be willing to express it anywhere - for what it means is that a constitutional provision can be interpreted, but not misinterpreted, construed but not misconstrued. More to the point here is that it means that the Constitution is a living charter of government only because it is repeatedly being reinvented by the judiciary.

• "Creating" Constitutional Rights and Dworkies Influence

The 'Living Constitution' school and the 'Judicial Power' school may be indistinguishable at the margins, but they derive from unrelated and distinct sources. 'Judicial Power' is a product or an extension of legal realism, the school of thought whose advocates, from the beginning of the twentieth century, have argued that the essence of the judicial process consists not in interpreting law, whether statute or constitutional, but in making it. Its advocates today speak with a certain nonchalance of "creating" constitutional rights (Moore v. City of EastCleveland), and, when pressed to cite their authority for doing so are likely to point to the work of contemporary legal theorists like Ronald Dworkin and his bookTaking Rights Seriously . It is Dworkin who has purportedly given this sort of "constitutional lawmaking" what it has always lacked ­ a philosophical underpinning. As he sees it, rights cannot be taken seriously until there has been "a fusion of constitutional law and moral theory," and to make it clear that he is not referring to any particular moral theory that may have informed the Constitution as written, he finishes that sentence by saying that that fusion "has yet to take place."

As it turns out, however, the moral theory he propounds, and which he hopes to "fuse" with constitutional law, proves to be nothing more than a fancy way of justifying what the judge Comptons among us have been doing all along. And what they have been doing is, essentially, treating the Constitution as a thing without form or substance, except insofar as it authorizes the judges to give it substance.

• The 'Living Constitution' School's Distortion of Marshall

The living Constitution school also claims to have a source more venerable than legal realism or Ronald Dworkin - justice John Marshall. A former president of the American Political Science Association argues that the idea of a " 'living Constitution'...can trace its lineage back to John Marshall's celebrated advice in McCulloch v. Maryland (1819): 'We must never forget that it is a Constitution we are expounding...intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs' " The words quoted are certainly Marshall's but the opinion attributed to him is at odds with his well-known statements that, for example, the "principles" of the Constitution "are deemed fundamental [and] permanent" and, except by means of formalamendment, "unchangeable" (Marbury v. Madison). It is important to note that the discrepancy is not Marshall's; it is largely the consequence of the manner in which he is quoted - ellipses are used to join two statements separated by some eight pages in the original text. Marshall did not say that the Constitution should be adapted to the various crises of human affairs; he said that the powers of Congress are adaptable to meet those crises. The first statement appears in that part of his opinion where he is arguing that the Constitution cannot specify "all the subdivisions of which its great powers will admit;" if it attempted to do so, it would "partake of the prolixity of a legal code" (McCulloch v. Maryland), In the second statement, Marshall's subject is the legislative power, and specifically the power "to make all laws which shall be necessary and proper for carrying into execution" the explicitly granted powers.

Neither Marshall nor any other prominent members of the founding generation can be 'appropriated' by the living Constitution school to support their erroneous views. Marshall's and the Founders' concern was not to keep the Constitution in tune with the times but, rather, to keep the times to the extent possible, in tune with the Constitution. And that is why the Framers assigned to the judiciary the task of protecting the Constitution as written.

They were under no illusions that this would prove to be an easy task. Nevertheless, they had reason to believe that they had written a constitution that deserved to endure and, properly guarded, would endure. Hence, Madison spoke out forcefully against frequent appeals to the people for change. Marshall had this Madisonian passage in mind when, in his opinion for the Court in Marbury, he wrote:

• "That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has beenerected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental: and as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent."

At this point, it is well to remember Hamilton's strong warning about unwarranted presumptions by those in government of a power to depart from the people's established form as quoted in the title of this essay.

Marshall referred to the "principles" which he called "permanent," and the "basis on which the whole American fabric has been erected" Yet Marshall also chose to address the much broader issue of the general scope of the national powers. The Constitution must be construed to "...allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people." It is these powers, not the Constitution, which are flexible and adaptable to meet the crises of "human affairs."

Ironically, the very case cited by the "living Constitution" school, when properly read, demonstrates that John Marshall, at least, saw, no need for flexibility in the Constitution.

Summary: Do We Have A Living Constitution?

What has been undertaken here has been providing (within a very brief compass indeed) an accurate statement of the principles underlying the American Constitution: pointing to (but by no means elaborating) the political theory from which they derive and the constitutional conclusions to which they lead. Among the latter is the untenability of the proposition that constitutional limitations can be jettisoned, constitutional power enhanced, or the constitutional divi­sion of powers altered, by means other than formal constitutional amendment.

It will not be argued that it may sometimes be convenient to allow the Senate to originate a bill "for raising revenue," but convenience is not a measure of constitutionality. There is much to be said in favor of the legislative veto - Who would, in principle, deny the need of checks on administrative agencies? - but, as the Supreme Court correctly said, the Framers anticipated that Congress might find reason to employ such devices and, when designing the so-called "presentment clause" in Article 1, Section 7, forbade them ( Immigration and Naturalization Service v. Chadha). And from a particular par­tisan perspective it is understandably frustrating, simply because the required number of states had not yet ratified the Equal Rights Amendment, to be denied the power to pro­mote the cause of sexual equality; but frustration alone cannot justify a judicial attempt to preclude the necessity of for­mal ratification, as Justice Brennan is said to have wished to do. In Frontiero v. Richardson (411 U.S. 677, 1973) the Supreme Court was divided on the issue of whether sex, like race, should be treated as a suspect classification. We are told that Justice Brennan circulated a draft opinion in which he proposed to declare classification by sex virtually impermissi­ble and that he knew this would have the effect of "enacting" the pending ERA. "But Brennan was accustomed to having the Court out in front, leading any civil rights movement," a major publication stated. Hence, we are further told, he saw "no reason to wait several years for the states to ratify the amendment." No reason, that is, other than the fact, which Brennan implicitly acknowledged, that the Constitu­tion as then written, and which had not yet been rewritten by the only people authorized to rewrite it, did not support the role he would have the Court hand down.

Those who would use "convenience" or "frustration" as reason, or who insist that it lies within the powers of the Court (or the Congress or the Executive) to effect constitutional change, can be charged with a lack of respect for the principles on which, as Marshall wisely observed: "the whole American fabric has been erected."

We are told that it is unreasonable - even foolish - to expect that the Framers could have written a Constitution suitable alike for a society of husbandman and a society of multinational corporations, to say nothing of one as well adapted to the age of the musket and sailing ship as to the age of intercontinental nuclear-tipped missiles. As the problems have changed, the argument goes, so must the manner in which they are confronted and solved, and the Constitution cannot be allowed to stand in the way. Indeed, there is no reason to allow it to stand in the way, we are told, because the Framers intended it to be flexible. And we are told that John Marshall would support this position. But it was Marshall, in McCulloch v. Maryland, who stated: "Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported." The United States, in this view was not intended to be a simple society of husbandmen, and Marshall Clearly saw that the Constitution empowered Congress to do what was required to meet the crises of the Republic, and to maintain the Constitutional structure intended by the Framers, changing it only when such change would be in keeping with the structure itself.

That the American Constitution is long-lived, has enduring qualities, and was intended for the ages cannot be doubted. That it was founded on enduring principles, and that it was based on the authority of a people who are sovereign has been attested to by many of its leaders. That it can be changed when, and if, the people ordain such change is a part of its own provisions. For these reasons, it can be said to be a "Living Constitution" - but let that not be claimed by those who would use the language to subvert the structure.

---

Our Ageless Constitution, 

W. David Stedman & La Vaughn G. Lewis, Editors (Asheboro, NC, W. David Stedman Associates,1987) Part VII:  ISBN 0-937047-01-5: (Essay adapted by Editors for publication in this Volume in consultation with Dr. Walter Berns from Berns' article by the same title in National Forum , The Phi Kappa Phi Journal, Fall 1984)

[ForYourChildren]

When a progressive, or even a conservative, describes to me that the constitution was written in the 1700’s and cannot possibly work for todays world, and therefore we need a living constitution; I say that that the founders gave us a living constitution, through the amendment process.

Whenever the federal government wants to take authority over something, then pass an amendment. This modifies the constitution to give authority to the federal government, otherwise the authority is with the states or the people. When the federal government wants to return that authority back to the states or the people then another amendment can be passed. A perfect example is the amendments regarding alcohol.

If authority that is desired by the federal government does not pass by amendment, then there must be a good reason why the states did not pass the amendment and then the federal government cannot have authority.

No amendment - no authority.

You take authority without amendment, then it is illegal and tyranny.

[muir_redwoods]

Living document my a$$. The Founders would not have spent so much ink on the amendment process if every county court judge could rewrite the Constitution on a whim.

[Rockingham]

You have covered a lot of territory. For complicated reasons rooted in history, I do not see the term "living constitution" as a malign seed that subverted America's constitutional system. Moreover, the metaphor has such strength in the public mind that in many instances contesting it needlessly weakens our arguments and our credibility.

As Mark Levin urges, the restoration of American liberty may require constitutional amendments for that purpose. In such an effort, the "living constitution" metaphor may be useful to us by hijacking progressive sentiments and reasoning and enlisting them in the cause of conservative reform. More than a few political battles have been won through such artifices.

[Alamo-Girl]

What a splendid essay, dearest sister in Christ! Thank you so much for sharing it!

And they didn’t regard mankind as cattle that needed masters for their own good….

Your allegory contrasts beautifully between the Constitution written by the framers and the Living Constitution of the progressives.

Indeed, should the public become as mindless as cattle, the Constitution would no longer be effective for their governance.

[Dust in the Wind]

BTTT

[betty boop]

For complicated reasons rooted in history, I do not see the term "living constitution" as a malign seed that subverted America's constitutional system. Moreover, the metaphor has such strength in the public mind that in many instances contesting it needlessly weakens our arguments and our credibility.

I respectfully disagree with this assessment of the historical situation. I do see the term “living constitution” as a malign seed that has historically subverted our constitutional system. That is to say, the term has acquired a particular historical meaning. To then take that term and “co-opt” its use to make it mean something else strikes me as a very dubious enterprise, and makes us complicit in the destruction of language and logic.

There’s another example of this sort of rhetorical maneuver that I find equally detestable — the total redefinition of a word that has had a constant, unchanging meaning for millennia: Marriage. Historically, “marriage” has meant the official recognition (be it by family/tribe custom or religious authority or civil magistrate) of a formal, enduring compact involving specifically male–female bonding for the purpose of begetting and raising children. Under this understanding of the word, there is no basis to suppose that such a thing as “gay” — same-sex — marriage could exist in the first place — obviously, because same-sex partners do not and cannot procreate.

So, what did the progressive activists do? They redefined the term, and got legislatures and courts to back them up. I find this sort of operation totally corrupt. Now ”marriage” is whatever the loudest-mouthed bully says it is, even if (conceivably, logically) it might extend to the recognition of a “formal compact” between a man and a goat…. Or a woman and her parakeet.

Such a construct trivializes both human love and human life. Which was probably the “progressive” object of the game from the get-go.

When interested parties can redefine the very meaning of words at will, what does that do to the prospects for rational human discourse? When words lose their historic meanings, what do we have to talk about? How can we understand one another? Rather, this sounds like piling up more and more bricks for a new Tower of Babel….

So, rather than appropriate the term “living constitution” and re-twist it for our purposes, I think we should constantly remind people that this term of art is NOT referencing the Article V Amendment process. To do so is to lose the critically important recognition that “living constitution” theory is a frank, bare-faced attempt to get around the requirements of Article V. It is deliberately designed to obviate the constitutional requirement of Article V, which is: Always to submit great public questions to the deliberation and consent of the sovereign people of the several states. Ultimate questions of public polity — ultimate because they reach and apply to all Americans if enacted — cannot be decided by legislatures and courts, but must be submitted to the judgment of the whole people before they can be applied to the whole people.

Plus there is always this consideration: If you use the tactics of “the other side” (TOS), even against TOS, you are playing by their rules. Thus instantly, you are conceding tactical advantage to them. Even more importantly, you make yourself indistinguishable from them along the lines of logical and moral reasoning.

I strongly advise against “going there.” It’s not clear to me at all from reading you whether this is the sort of thing that Mark Levin — for whom I have the greatest respect and admiration — actually proposes.

You wrote,

As Mark Levin urges, the restoration of American liberty may require constitutional amendments for that purpose. In such an effort, the "living constitution" metaphor may be useful to us by hijacking progressive sentiments and reasoning and enlisting them in the cause of conservative reform. More than a few political battles have been won through such artifices.

RE: “hijacking progressive sentiments and reasoning and enlisting them in the cause of conservative reform” is not something that I can conceive of happening, now or ever. It is, to me, a pipe dream. Still, I can appreciate how winning political battles often has been accomplished by means of artifice. [See: Obamacare.]

Yet to me, ultimately, this is not about winning “political battles.” That seems all by itself to trivialize the enormous problems liberty-loving Americans face. Rather, it’s about revalidating the truths that lie at the very heart and foundation of American order.

Do you really want to commit the future of We the People to artifices and stratagems? This is not a short-term contest to be decided by winners and losers. This is ultimately a project for the recovery of the American “soul,” which cannot be done by artifice, but must be sought in Truth.

To be continued…. Thank you so very much, Rockingham, for sharing your observations about these matters!

[DoughtyOne]

I agree with you Betty Boop.

I like your example and I’ll add one of my own. The Second Amendment clearly states, “...shall not be infringed”, however it is infringed constantly.

Our Forefathers put a lot of thought into this document. Today lesser men by far unravel it.

Original intent, means a lot to me.

Freedom to speak of God in our schools should be protected also. Christians are denied their right to talk of God there, take their Bibles there, or submit essays on religion there.

WRONG!

We could both go on. Perhaps we should...

[marron]

This goes back to the whole notion of “Natural Law” which is the foundation of our system. Civil and criminal laws rest upon a moral foundation which is in accord with natural law which is a philosopher’s handle for God’s law. Human laws which are not in harmony with moral law are not laws; rulers who enact laws not in accordance with moral law are themselves lawless and illegitimate.

This brings to mind the old Abe Lincoln joke that goes like this:

If we decide to call a dog’s tail a leg, how many legs does a dog have? Five?

Four. Call it anything you want, its still not a leg.

Pass all the laws you want, there is no such thing as homosexual marriage and never has been and never will be. All you do with such attempts at lawmaking is expose the illegitimacy of the regime itself.

[hosepipe]

Indeed, should the public become as mindless as cattle, the Constitution would no longer be effective for their governance.

---

The reason progressives have long sought (and succeeded) to degrade the public school system...
Which is WHY? they instituted federally controlled public schools..
AND were very successful...

Making “Animal Farm”(the book) a reality and no fiction...
By and large americans have become cattle(NOW).. farmed, milked, and slaughtered... “processed”..

VOTER FRAUD.. is a side issue and not worthy of “REVOLT”..
Most americans seem to have become PIGS..
Sausage is processed DAILY!..