Blue Collar Muse

In discussions of Constitutional interpretation, an interesting concept has turned up in the last few years in the context of a why a position is or is not Constitutional. It’s stated in some form of the idea that “the Constitution is a living document”.

The idea has appeal for a variety of reasons. The language is positive - our founding document is portrayed as living and vibrant, not stodgy and decrepit. It’s flexible, adaptable and able to change with the times. In today’s tech jargon, it’s 2.0; constantly updating to meet the freshest ideas and developments. Most people know one of the basic characteristics of the definition of life is anything which is alive, grows! If something stops growing it is either dead or dying. The intentional use of such language paints a picture of the document at the heart of our Republic as vibrant and energetic!. By association, changes made to that document or in its name are colored with the same brush. The intent is to have such changes viewed as proper and necessary to keep America in step with the times.

However, I find such an understanding of the Constitution, and legal rulings or private opinions based on it, to be deeply flawed in their understanding of both the content and the role of the Constitution. At its root, such a view finds the Constitution, as originally conceived and constructed, insufficient to address the challenges it faces in a more modern world. I cannot disagree more.

The first challenge faced by the idea of the Constituition as a living document is the basic simplicity of the document itself. This is not some lengthy work filled with hidden meaning. It was intended for public consumption. In fact, the entire original document was printed on just 4 pages of the Pennsylvania Packet and Daily Advertiser newspaper two days after it was signed. To give all citizens access to the document that would govern them, the text was routinely printed in other newspapers around the country. The assumption would seem to have been that readers would easily understand it. We continue that assumption today. Politicians and soldiers swear to defend the Constitution from its enemies. If it is difficult to understand and constantly changing, how can a man know who those enemies are? How can any particular view be said to be Constitutional or not if the Constitution itself is continually subject to review?

The second problem arises from the nature of the Constitution itself. Buildings are complex physical things, skyscrapers even more so. Interestingly, the largest ones, despite being made of steel and concrete, are flexible. The Empire State Building, for example, sways and moves at the top and was designed to do so. Its foundation, however, does not move. In fact, it is the stability of the foundation which permits the top to flex in the changing environment in which it continually finds itself. Just so, the Constitution is a foundational document, not one affected by passing environmental changes. It provides long term legal and cultural stability shielding us from the vagaries of societal fads.

Proclaiming the Constitution a living document is a deception. Whether by design or chance, the practical result of such a proclamation is separating citizens from their Constitutionally afforded protections. This creates a situation rife with potential for men with an agenda other than Liberty to oppress their countrymen. The Constitution was conceived and created to prevent government from trampling on the rights of men. Those rights were not granted to men by the Constitution. Rather they are recognized by the Constitution as being granted to all men by God. As such they are inviolate insofar as US law is concerned. Redefining the Constitution as a living document, capable of change and reinterpretation as each new generation sees fit, strips the eternal power of Divine authority from the document and subtitutes ever changing human reason as the standard by which we judge.

It is not the Constitution which lives and breathes, it is the men which it rules who do so. With each party in its proper place, our values are firmly anchored and we greet a changing future confident that American ideals are well guarded. Swapping the roles, however, leaves us in the precarious place our country and culture currently find themselves. Standing on a shifting foundation, we flail about to keep our balance in a changing world. To cope, we make our Constitution say things it clearly does not as in the case of Roe v. Wade and make it silent on things to which it clearly speaks as in the case of Kelo v. New London.

The Constitution as a living document is a lie which threatens our Liberty as men and our existence as a nation. That threat must be opposed with the same passion and urgency our Founding Fathers opposed the enemies of Liberty which fought them so long ago. Either that, or we agree to submit to the whims of whichever King ends up on tomorrow’s throne. Asked by citizens what sort of government the delegates had created for America, Benjamin Franklin famously replied, “A republic, if you can keep it!” He knew then what I say now - there exist those who would steal our Liberty! I don’t intend to allow that to happen without a fight. So - to the advocates of a living Constitution; to those bending the Constitution to fit their own views; to those seeking to steal my Liberty, and; to those standing at a distance and suggesting I surrender my rights, I echo the response of Leonidas to Xerxes when it was suggested the Spartans at Thermopylae surrender their weapons. I say, “Molon labe!” - “Come and get them!”

Blue

Popularity: 48% [?]