It’s Alive! Why the Constitution should remain dead.

NRO ^ | 7/8/03 | Jonah Goldberg

[William McKinley]

It has been a while since I enjoyed a G-file this much.

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[MarkL]

The simple fact is that the Constitution was designed by the framers to be a "living" document, but that phrase has been usurped by the leftists, who don't believe in "playing by the rules." The framers knew that there would have to be changes over time, so they built that capability into the Constitution: But they designed the method in such a way that the winds of popular opinion would not be able to change things radically. Just like their idea that the Senate was to be a check against the House of Representatives, and the will of the masses... Of course that was shot to hell...

No, the Constitution is meant to change, but not through judicial fiat, but the legislative process, known as amending the constitution. Of course, that process, as well as the concept of a Constitutional Republic is pretty much ignored by nearly all the politicians, and the public simply doesn't know the form of government we're supposed to be living under... Ask anyone on the street what sort of government we live under, and they'll tell you "a democracy." That would have the founders of the USA spinning in their graves.

Mark

[foreverfree]

bump

[goldstategop]

I am an unabashed proponent of tradition. Its not just American. Jews who look at the Torah note how its written in the present tense which implies the past is a guide to the future and those not alive yet, owe a debt to those long gone for the rules and precepts they live under. In Judaism this is reinforced in a long tradition of religious ritual as well as in teachings of The Sages. At no point is it suggested tradition is to be devalued and the teachings themselves changed in the light of the conditions whatever time people happen to live. Tradition just is. The U.S Constitution has a similar view towards the future and for a long time the Supreme Court interpreted it as it was written. Tradition commanded it be enforced exactly as it was written. Liberals despise the past and the teachings of ancestors. They view it as an unbearable restraint upon the new, the exciting, and the provocative impulses of life. And increasingly the courts have agreed with this view. But if the Constitution is not a repository of tradition and the wisdom of The Founders and if it be malleable with the times, it cannot be certain guide either to good government, to social morals, or to the conduct of society. Without tradition, as Tevye of Anatevka was wont to lament, "our lives become as shaky as the fiddler on the roof." For all of the aforegoing reasons stated by bias and the operation of my own prejudice is clear. I am in favor of a dead Constitution.

[Atlas Sneezed]

"No, the Constitution is meant to change, but not through judicial fiat, but the legislative process, known as amending the constitution."

Sadly, no news reporters or analysts (not even conservative columnists) seem to know this important fact that used to be commonly taught in high school civics courses.

[William McKinley]

I am not sure if Jonah is your cup of tea, but I found this essay to be quite good.

[Arkinsaw]

I prefer to think of it as "sand" versus "rock" rather than "living" versus "dead".

[William McKinley]

I like it, especially since it plays to the liberal hippie strumming a guitar singing "the answer, my friends, is blowing in the wind" as the sandy remnants of the Constitution blow away.

[Malesherbes]

The conservative Right has a plethora of wise and witty writers and Jonah is right(pun intended) up there with the best of them. The screeds from the Left are usually ignorant, ad hominem, and as boring as a biography by Hillary.

[colorado tanker]

Jonah is 100% spot on.

Someone, I don't remember who, once said the reason more countries have not adopted a version of the U.S. Constitution (very few have) is that they would have to adopt the hundreds of volumes of the Supreme Court Reporter along with it.

[betty boop]

I have three problems with the concept of a "living Constitution." The first is literal. It's simply not true that the thing is alive. The Constitution meets none of the criteria put forward by biologists as indicating life.

Thanks so much for this post, William McKinley!

I disagree with Jonah Goldberg's above observation. That is, I do believe the Constitution is "alive," but not in the sense that the "living document" crowd avers. (If it were dead, America as we know it would also be dead.)

And I do believe that biologists have put forward criteria indicating life which, to me, clearly pertain to the Constitution. Perhaps the most important one is that any living entity is capable of making sensitive adjustments to changes in the environment (internal and external) in which it lives, while at the same time maintaining its own integrity and its identity.

When the Left says "living document," what they really mean is they want a document that can change into something else. Which is not what a living entity does at all: It wants to preserve itself.

FWIW

[Steve_Seattle]

Liberals want a "living Constitution" as a blank check with which to write themselves policy victories which they cannot obtain democratically. And once allegiance to the doctrine of "original intent" is abandoned, there is literally no limit to what the Supreme Court can do. What liberals want is a crypto-dictatorship in which the Supreme Court answers to nothing except itself.

[CGVet58]

way 2 go, Jonah!!! excellent post!

[cornelis]

Great replies, both. I reckon there are two sides to a coin.

[x]

Jonah's always a very bumpy read, but he does make two excellent points that merit consideration and discussion.

The fact is that the Court rarely reflects popular opinion so much as elite opinion. And it almost never reflects popular opinion when the pro-"living Constitution" crowd calls the justices "heroic." For example, the Court recently upheld racial preferences even though a large majority of Americans consistently oppose them. The Court based its ruling not on what Americans want but on what it thinks Americans need: Diversity is good for whites; preferences are good for blacks; it's all-good for America.

And, once you realize that the Court is not changing with the generations so much as changing with whatever is fashionable in elite society in Washington and New York, it becomes clear that the people who celebrate the idea of a "living Constitution" don't really want the Court to follow the people, they want it to lead or, if need be, command the people. As Judge Robert Bork noted in The Tempting of America"The abandonment of original understanding in modern times means the transportation into the Constitution of the principles of a liberal culture that cannot achieve those results democratically."

...

Second, it reveals why amending the Constitution is so much less pernicious than redefining the existing words. Amending the Constitution is hard because the Founders rightly wanted it that way. Making it a slow and difficult process — often taking years or even generations — not only guaranteed that only the most important changes would be considered as binding precommitments for future generations. It ensured that any proposed changes would be debated and argued over by just about everyone over a sufficient period of time so as to make certain that everyone thought about the lasting repercussions for generations to come. In other words, the Founders designed the amendment process to make us all wear the hat of a Founding Father. But when the Court simply redefines the existing words to mean whatever the majority wants, the Constitution is not longer about precommitting future generations to agreed-upon rules, it's about rank power in the here and now. You may not weep over the fact that this nullifies our ancestors efforts to set the rules of the game. But I hope it bothers you that the rules of the game are still being changed and you have almost no say in what kind of Constitution your descendents will live under.

If the amendment process were more active, we would have a truly "living" Constitution. But apparently neither elites nor the public really want that. A Constitution too frequently amended doesn't inspire awe. It starts to look like state constitutions, which can have hundreds of amendments and even be replaced at crucial intervals. We tend to want an abstract, general Constitution that offers vague guidelines and absolute rights, and inspires reverence by its distance and untouchability. Thus, we leave it up to the courts to fill in the details and get judge-made laws.

We could probably get the problem under control, if we made more use of the amendment process. It might not only right the wrongs the Court makes, but dissuade future justices from making more usurpations. But the amendment process is so daunting, and the pressure not to "clutter" the Constitution with more practical amendments usually makes the Court's critics back down.

[cornelis]

the Constitution is meant to change, but not through judicial fiat, but the legislative process, known as amending the constitution

This is what led Willmoore Kendall, to call the Constitution as a "procedural" document.

[cornelis]

We could probably get the problem under control, if we made more use of the amendment process

I'm in favor of a human life amendment; it would be proportionate to the 2nd. But given the present predisposition to short-cuts to the court by both citizen and statesman it may be that only frivolous amendments have a chance. 1776 was run by more mature minds informed by a decent and humane respect for the past.

[hosepipe]

The constitution is of course a living document meaning it can and should change. Testifyied to the fact of the amendment process provided. However, the framers did this knowing full well it could be abused. They also made room for revoultion to be legal(2nd amendment). What they did not count on was a people that had no balls. A balless people would be afraid to revolt makeing for some spagetti western searios to play out. With a gang handing out supreme "justice". Better than whiney cowardice pontificateing about "lost rights" that others payed blood to gain.

Maybe they(founders) figured if the people became that disfigured, dictatorship would be better than democracy, and of course they would be right..

[Freedom4US]

The 64 dollar question, though, is this: If the government defacto expunges the constitution, (one may well argue we're well on our way) can we as citizens claim, or reclaim, as it were, the original constitution for ourselves? What would the framers say? I tend to think they would answer in the affirmative.