Posted on 04/05/2017 4:33:03 AM PDT by servo1969
Full Title: Constitutional Originalism or the "living Constitution": Gorsuch's nomination and a tale of two law profs
Judge Neil Gorsuch's nomination has brought to the fore the seemingly dry argument about two competing theories of Constitutional interpretation, Originalism and the "living Constitution." Gorsuch himself is an "originalist" while the Democrat party arrayed against him puts its faith in a "living Constitution."
Two recent essays both discuss Originalism and "the living Constitution": Prof. Glenn Reynolds' "Who the People?" in USA Today, and Prof. Mary Bilder's "The Constitution Doesn't Mean What You Think It Means" in the Boston Globe. Dry though the argument may seem to those not already steeped in the law, Progressives have turned this into the single most important issue facing our nation, so pay attention to this one.
Why is this so important? Because whichever of those two theories, Originalism or living Constitution, wins goes to the heart of how we will be governed in the future. It will determine whether we will be a Republic under a government with limited powers that the people control through the ballot box -- as the people who drafted the Constitution envisioned -- or whether we will be a nation pushed ever further left by non-democratic, extra-constitutional means, morphing to the point that the Constitution is meaningless and our Republic gutted in a brave, new, progressive, socialist nation.
The competing theories are easily explained. "Originalism" is a wholly apolitical theory holding that one interprets the Constitution as it was understood when passed. This is not inherently conservative or liberal, Republican or Democrat. It is merely adherence to a framework that allows for the people of the nation -- not judges -- to amend it.
Automatic adherence to Originalism explains why, for more than a century, there were no politics attendant upon confirming Supreme Court justices or judges holding other positions in the federal system. Judges were not ideologues, using their position to create new laws or Constitutional rights; they were just judges, applying the Constitution and the law as written to the facts before them. Progressivism was not ascendant in American politics until Woodrow Wilson was elected President in 1913. Only by the 1980s, after several decades of decisions from Progressive activist judges, did legal scholars coin the word "Originalism" to apply to the traditional judicial approach to the Constitution.
In an act of pure projection, progressives have falsely labeled Originalism as "conservative." As Prof. Reynolds says in USA Today:
[C]ourts have a duty to enforce the Constitution as written, whether those results further the aims of a political majority or of a minority. When courts do so, even if they strike down laws passed by the majority, they are not engaging in judicial activism. They are simply doing their jobs. . . .
Arrayed against Originalism is the "living Constitution." The very term is polish on excrement, much akin to "Democratic People's Republic of [stick in the name of your preferred police state / dictatorship here]." Just as there is nothing Democratic or Republican about a socialist dictatorship of any stripe, there is nothing constitutional to be found in the theory of a "living Constitution." The term is used to give an air of legitimacy to the wholly illegitimate.
Under the progressive socialist's theory of a "living Constitution," un-elected judges are free to ignore the original intent of those who crafted and voted in a referendum to pass our Constitution and take unto themselves the power unilaterally to proclaim new law or otherwise amend the Constitution upon their whim. The Constitution itself spells out, in Article 5, the only two means by which the Constitution could be amended -- and neither of those include amendment by judicial fiat. The incredible genius of the system our Founders crafted, limiting the power of any one branch of government by a series of "checks and balances," is lost through this judicial usurpation of power at the expense America's citizens.
So how does Prof. Mary Bilder attempt to justify this obscene "living Constitution" assault on our republican form of government in her essay, "The Constitution Doesn't Mean What You Think It Means"? To begin with, what a perfect title. At least there she's not hiding the ball. The contents of her essay, though, are a different matter entirely. To be that honest would be to invite a second watering of the tree of liberty.
Contrary to the essay's title, Bilder shies away from providing actual examples showing the "living Constitution" in action. Those who pay attention to the news, though, can readily supply as a backdrop to the essay multiple Obama-era examples of the living Constitution at work.
You thought the Constitution was silent about abortion? Idiot! There is a penumbra in there that only Progressives can find.
You thought the 14th Amendment dealt with only the rights of blacks and minority citizens? Idiot! There was a right to gay marriage hiding in there all along that only Progressives could discern -- and despite the fact that homosexuality was under legal censure throughout the US when the 14th Amendment was passed.
You thought the First Amendment was written to protect the conscience of the those practicing the Judeo-Christian religions? Idiot! Progressives have always known that those rights have to take second place to normalizing homosexuality. Now it is safe to drive Christians from the public square if they refuse to violate their conscience.
You thought that the entire format of the Constitution was created to limit the power of government? Idiot! Obamacare has shown us that our Constitution creates a government so strong and intrusive that it can fine every American for failing to purchase East India tea that comes with a British tax on it. Every American who fought in our Revolution would, I feel safe to say, be moved to violence at that thought.
Rather than expose the un-democratic creative writing and activism behind those decisions that apply to the "living Constitution," Bilder takes a different tack. She argues that Originalism is a theory of recent origin, an assertion that implicitly makes it equal to another recent theory, that of a "living Constitution." With neither having a long pedigree, Bilder argues that the Progressives' favorite should take precedence because, unbelievably, that's what the Founders would have wanted.
Of course, as is so typical for a Progressive argument, Bilder's argument is a fraud by omission misleading those in her audience (probably most of them) unfamiliar with the Constitution's creation and with the use to which American justices put the Constitution until well into the 20th century. It was only then that the Progressives, eschewing the amendment process, slowly and steadily started using the federal courts to rewrite the Constitution to suit their statist goals.
Bilder's prestidigitation, which sees her purport to educate her readers even as she carefully hides important truths, begins with her utterly incoherent and historically flawed argument that our Founders were simply too busy and too pressured to actually mean what they said when they wrote the Constitution. Let's take a look at history as per Ms. Bilder, with my comments are in brackets:
The framers thought they had a constitution, just one that wasn't working. Congress asked the states to send delegates to "render the federal constitution" -- the government under the Articles of Confederation -- "adequate to the exigencies of Government & the preservation of the Union." [True -- but to add, the attendees decided that, to create a lasting government, they needed to exceed their mandate of amending the Articles of Confederation and start over from scratch]
Creating a workable organization of government was the task of that summer, not writing an intricate document. [That last bit is ridiculous. In the end, the drafters created the most complex form of government ever in existence, one with carefully crafted checks and balances. And they ensconced legal principals that did not take a lot of words to describe, most of them laden with centuries of English custom and history.]
Indeed, the most important source we have for the Constitution, James Madison's "Notes of Debates in the Federal Convention of 1787," shows that the fluid internal politics of the convention could easily have produced a much different government. In the future president's notes, the delegates debated for weeks the structures we take for granted -- a bicameral Congress with the states represented in one house and the population in the other. Madison did not want the states to be represented. He lost. He and members of the Virginia delegation were so annoyed about losing that they voted for an executive to serve on good behavior with no term limit. That proposal also lost.
Madison's notes help us see that the framers were too busy writing the Constitution that would save the country to draft the type of airtight document that originalists perceive.
Let's stop there for a moment, as you can no doubt see where Prof. Bilder is going with this. Her narrative -- it can't honestly be referred to as logic -- is that because our Founders met in committee and argued about our form of government during a chaotic period, that none of what our Founders wrote and what our people voted for in a series of state wide referendums through 1792 should be taken seriously. I don't think that I have ever heard a more specious argument. In conclusion, Prof. Bilder writes:
From the moment the Constitution became visible in September 1787, its meaning was contested. [I am not aware of anyone contesting the "meaning" of the document. The provisions were certainly argued over in public, as The Federalist Papers and the Anti-Federalist Papers attest, along with a host of pamphlets. And indeed, it soon became apparent that the Constitution would not pass unless specific individual rights were included -- and thus the creation of the Bill of Rights. But whether the words meant what they said, whether the words created a penumbra or right to gay marriage or the power to force people to buy tea . . . no. That was never contested, Prof. Bilder's unsupported assertion aside.]
In a letter widely published in newspapers alongside the text, convention delegates expressed hope that the Constitution would "promote the lasting welfare of that country so dear to us all, and secure her freedom and happiness." The preamble reminds of us of this same forward-looking wish: "promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." [Prof. Bilder is suggesting here that, because our Framers and those who voted for the Constitution could not be sure that their work would be effective -- and they couldn't, because they were in uncharted waters, creating a new government in a world ruled by the iron hand of kings and potentates -- that somehow delegitimizes the Constitution today. That is absurd.]
Originalism requires that the Constitution be a type of document literally beyond the capacity and purpose of the framers. In his hearings, Gorsuch insisted that judges must look "backward . . . in the sense of looking at historic facts." But when we look backward at the historic facts of the creation of the Constitution, all we see is a document written under the most trying of circumstances -- to ensure a future. [Emphasis added.]
That sentence, "Originalism requires that the Constitution be a type of document literally beyond the capacity and purpose of the framers," is the central conceit of the entire progressive "living Constitution" movement. The Framers were by and large modest men fully aware of their own shortcomings and the incredible burden of crafting a wholly new type of government. They were all well versed in history, not only of other political systems, but in the history of British rights. What they created was so pragmatic that it created the longest surviving Republic in the world's history. Still, the Founders were cognizant of the possibility that what they created might need to be altered, so they included two means of doing so democratically and without the aid of unelected judges in Article 5 of the Constitution. Just as we can be incredibly suspect of the recent Ninth Circuit activist decision stripping President Trump of his Constitutional and statutory power to craft an immigration pause since the Circuit court never addressed the applicable law, so we can be suspect of Prof. Bilder's arguments which never mention Article 5 and the lawful means we have to amend the Constitution.
But the above is only half of both the "living Constitution argument" and half the history. Prof. Bilder alludes to this in her article when she notes that "Originalism" is a legal theory of Constitutional interpretation that has only been around since 1980's. She implies that this is some new innovation. The truth is that, while "Originalism" is a neologism, the underlying concept has been around since long before the Constitution's inception in the British system -- and it is that on which our own system is based.
For the better part of the first 150 years of our nation's existence, no one question the fact that it was the duty of justices to apply the Constitution as written in 1792. Yes, there was the occasional one-off where Justice's seemed to deviate from this principle, resulting in the Supreme Court's accretion of power to declare Constitutional law or, in the most Dred-ful of decisions, setting off the Civil War.
What is important, though, is that no one during those first 150 years, drunk or sober, argued as the Progressives do today that Justices had the inherent power to amend the Constitution and declare it to have a constantly changing meaning unrelated to what it meant in 1792. Indeed, that is why, for the first 150 years, Congress and the American people repeated amended the Constitution in accordance with Article 5. It's was the People's job, not the judiciary's to change the government's structure or the People's inherent rights.
The reality is that our Founders could not envision, in 1792, the rise of the socialist ideologies of which Progressivism is part and parcel. When the Founders crafted Article III of our Constitution, they were completely silent about the federal judiciary's powers beyond jurisdictional issues -- the types of cases the court could hear. Our current understanding of the federal court's function -- the right to review laws and to pronounce by fiat authoritative interpretations of Constitutional -- reflects powers that the Supreme Court justices themselves created out of whole cloth in the years after the Constitution was passed.
Alexander Hamilton opined in Federalist No. 78, arguing in favor of passage of our Constitution, that the judiciary would be the "least dangerous branch of government." He had that completely wrong. Our Founders, in their silence in Article III, failed to grasp the danger that the judiciary posed to the Constitution and our Republican system of government once the Progressives politicized it. The judiciary has, under influence of the progressive left over the past century, become the most dangerous branch of government.
The iconic leader of the Progressive movement at its inception in America was Woodrow Wilson (may he roast in hell). He argued that the Constitution was unworkable because government is a "living thing" that cannot function with "checks and balances." This argument was a direct assault on our Constitutional form of government, and it's one that the Progressive left has embraced ever since. Only recently, though, has the make-up of the federal judiciary placed this entirely unconstitutional notion on steroids. That is, until the Obama administration, the Progressives' sole vehicle for changing America was to use the Courts one step at a time to sidestep the voting box and our Constitutional safeguards.
Thanks, however, to a new generation of activist judges (e.g., Judge Derrick Watson, the entire 9th Circuit, or the panting, throbbing Justice Kennedy and his Obergefell romance novel), the Progressives have with increasing frequency made a mockery of the Constitution using the "living Constitution" theory -- and adding insult to injury, they have claimed moral superiority for doing so. Nothing could be further from the truth. Anyone who supports the theory of a living Constitution is either an idiot who blindly follows whatever the Progressives say or, if he fully understands the implications underlying the living Constitution theory and still supports it, then he is evil and needs to be driven from the public square.
When Prof. Bild claims that "Originalism" is a recent theory, she is only partially correct. The neologism "Originalism" is new, as is the fact that judges and scholars have built a body of scholarly literature around it. What she isn't telling you, though, is that the neologism became necessary only to distinguish what was once ordinary and accepted from entirely new theories the Founders never foresaw. Thus, originalist interpretations of laws and the respective nation's Constitutional documents was the norm in both British and American courts for centuries before the French Revolution, Karl Marx, and the rise of Progressive politics in America created an entirely new paradigm.
Under this new paradigm, Progressives for the past one hundred years have changed the courts from a tool that interprets the law as intended and written into the mightiest weapon that Progressives could use to change American society. Originalism is nothing more than a restatement of historical court norms made necessary by the progressive canard of a "living Constitution."
As the fight over Neil Gorsuch's confirmation illustrates, Progressives fully understand that their real power lies, not in politics, but in the judiciary. It is to be hoped that those Americans who value our Constitutional republic and the freedoms it guards can be brought to understand that this fight -- the fight over the Supreme Court -- is the one that will shape America's future. So I reiterate what I said in the beginning of this post: Pay attention. This matters.
Good Morning Mr. President,
Well here approaching the close of your third month in office and a great three months it has been, but, now it is time for you to reward those who worked so hard for you, The Patriot Community.
And how you ask can you do that?
That sir is simple. One piece of legislation from you, or perhaps and Executive Order, either would be fine, the one that gets the most publicity from the infamous fake news would be best.
And what you ask would that legislation be? Legislation that simply acknowledges our form of government and gets it back into the class rooms.
Legislation authorizing one copy of the US Constitution with no commentary, but indexed, for every six grade student in the Republic. For sir you owe you position not to any form of democracy, but the only form of government in the world that has the electoral college, for without it you would be in jail, clinton would be in office, Maine would be a free nation, and the other 49 states would be in civil war.
Mr. President, I would never be so bold as to put words in your mouth, but, if I were I would ask you to include, in either the proposed legislation or the Executive Order, something along the lines of this:
241 years ago men did not fight, kill, and if needs be die to give us a democracy, no, the fought, they killed and many died giving us this Constitutional republic. For we are not a democracy, we are not a democratic democracy, no, we are a Republic a Republic whose supreme law is the Constitution of these Untied states of America that I am so proud and honored to lead.
But it seems that simple fact has been lost on many, in many if not most, of our public schools the fact that we are a Republic has been replaced with the falsehood teaching that our nation is just one more democracy.
So as to correct this, I have instructed the Department of Education to immediately make plans to have in the hands of every student entering the sixth grade next year three things:
The Declaration of Independence, an unabridged copy of the Constitution of The United States and a copy of the Constitution of their state.
I am further ordering the Secretary of Defense to include in all boot camps a class on both the Declaration of Independence and the US Constitution, for how can we ask our fine you men and women who make up our Military to put their lives on the line fighting, for a nation they do not understand?
Respectfully,
The penalty for legislative judgements should be exile
The single greatest step forward in the governing of a people was when the Romans overthrew their king and posted their constitution for everyone to see the agreed-upon limitations of their new government.
So who created the concept of judicial review whence the modern judiciary draws its power? John Marshall, as Chief Justice of the US Supreme Court. Was Marshall a participant in the Convention? No, though he did work hard for ratification. Was judicial review a power even discussed at the Constitutional Convention? No. Was judicial review one of those demands arising from the ratification process that ended up in the Bill of Rights? No. One man created this power.
Actually, it is not a question of an “Original” or a “Living” Constitution.
It is whether or not we have a Constitution at all.
If we have a “Living” Constitution then we have no Constitution, no charter, at all. A ‘Living’ Constitution has no meaning and can be changed on the whims of black-robed tyrants.
This article isn't specifically about Article V, but it is the best article I've read about the difference between Originalism and the Living Constitution. It clearly defines where we are now.
This article is about the difference between Originalism and the Living Constitution, and where we are today. It impinges on Federalism issues because the Living Constitution has reduced the states to administrative subdivisions of the federal government. This is a well written article and deserves a look.
Thanks Pub.
"The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” —Thomas Jefferson to Spencer Roane, 1819.
<>Was judicial review a power even discussed at the Constitutional Convention?<>
Yes. I can provide the dates and speaker on the subject if you wish.
We can thank the 17th Amendment for runaway courts.
Recently, Sen. Feinstein, during the Gorsuch hearings, declared her devotion to the idea that we "have a living constitution," as part of her opposition to this nominee.
Fortunately for us, Professor Walter Berns, in the 1980's, laid out ample proof that the "living constitution" idea was a fraudulent concept being promoted in order to subvert the principles of the original document. Progressives seem to be especially adept at using semantics and slicing and dicing of the language in order to mislead citizens.
Many of those who have led and participated in the decades-long so-called "progressive" movement away from the Constitution's principles and strict limitations on power of the federal government have subscribed to that bit of chicanery and fiction which became known as the "living constitution" school of thought. Berns' 1984 Phi Kappa Phi essay was reprinted in the Bicentennial 1987 Volume, "Our Ageless Constitution."
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 from reflection 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 knowledge of their sentiments, can warrant their representatives 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 "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.
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.
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 of U.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.
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 East Cleveland), 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 book Taking 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 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 formal amendment, "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 been erected. 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.
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 - Part VII (1987) (Publisher: W. David Stedman Associates; W. D. Stedman & La Vaughn G. Lewis, Eds.) 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)
Thanks to the ill-conceived 17th Amendment, corrupt, state sovereignty-ignoring senators not only help the House pass unconstitutional bills which steal state powers and state revenues uniquely associated with those powers, but also consider the following.
Senators then confirm state sovereignty-ignoring activist justices to the Supreme Court, such justices then declaring the unconstitutional laws which the Senate helped to pass to be constitutional, unconstitutional Obamacare a great example.
The bottom line is that the 17th Amendment arguably effectively repealed the whole Constitution.
Yes. I can provide the dates and speaker on the subject if you wish.
Please do. I’d be interested to see how the subject is addressed.
Agree. Also, the Framers would freak at the idea of popularly elected six-year terms. The only reason our representatives don’t stand for annual elections is due to the horrible roads and connecting infrastructure of the 18th century.
8 yrs in the US Army and every year since Thomas Sowell published his reading list for those interested in understanding the Constitution maybe back to 1985— the more I learn of what was adopted as our US Constitution —the more convincing proofs I see that the Constitutionalist is expressing my opine. In Constitutional Faith To borrow from Sanford Levinson —other than a Protestant.
My notes show what was later termed judicial review was touched on:
28 May George Wythe
4 June Elbridge Gerry
21 July James Wilson
21 July Luther Martin
21 July George Mason
23 July James Madison
15 August Gouverneur Morris
22 August Hugh Williamson
28 August James Madison
That’s why we were given the ability to amend the Constitution, which has happened 27 times.
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