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Living constitution, dying republic

By W. James Antle III
web posted July 21, 2003

The U.S. Supreme Court's recent affirmative action and sodomy decisions were attended by a great deal of debate: Does Grutter v. Bollinger point to the eventual end of racial preferences or does it entrench them? Does Lawrence v. Texas increase the likelihood of judicially mandated gay marriage? Even if you agree with striking down anti-sodomy laws (as I do), was Lawrence the constitutional way to do it? What are the permissible ways of achieving campus diversity under Grutter?

These are all important issues, but it is worth noting how much attention is paid to the political and policy concerns as opposed to the constitutional questions that the Supreme Court is called upon to resolve. Indeed, the rulings themselves seemed to be based in large part on political considerations. It is said that the Court follows the election returns, but nobody elected them to be a national super-legislature of last resort.

Whatever you think of either decision, they both read like political treatises in search of constitutional rationales rather than politically neutral applications of the written law. In Lawrence, Justice Anthony Kennedy wrote a majority opinion that overturned Court precedent on a divisive social issue even though they would seem to be at variance with the position on stare decisis he took in upholding legal abortion in Casey v. Planned Parenthood. Concurring was Justice Sandra Day O'Connor, who voted the opposite way when the question last came before the Court in Bowers v. Hardwick. O'Connor's majority opinion in Grutter seems to suggest that some of the affirmative action programs that are now constitutional will cease to be in 25 years.

In other words, these two justices apparently do not believe that the Constitution has any fixed meaning. Instead of explaining how they became persuaded that their own prior interpretations were mistaken, they seemed to be tailoring their rulings to the circumstances. It is difficult to escape the conclusion that they decided to vote the politically correct way first and work out a constitutional justification later. One wonders how they would have voted in a climate where elite opinion on these subjects was different.

Justices Kennedy and O'Connor, both Republicans appointed by President Reagan, are not unique in seeking to re-interpret the Constitution in this fashion. A great many highly pedigreed jurists and scholars regard this as perfectly acceptable, a way of treating the Constitution as a "living document."

During one of the 2000 presidential debates, Al Gore said that he would appoint justices "who understand that our Constitution is a living, breathing document." He suggested "it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people."

How ironic: Appealing to the Founding Fathers in order to rationalize a complete disregard for their intent in framing the Constitution. A written constitution that can be interpreted to mean the opposite of what those who drafted it intended is no constitution at all. The idea that the Constitution means whatever some branch of government says it means is inimical to the rule of law. Law, especially constitutional law, must bind the government as well as the governed.

Of course, the Founding Fathers did intend some flexibility and room for interpretation within the Constitution. Farsighted as they were, not even they could anticipate every issue that could be raised or every need of the new Republic. Just because technology changed to make trucks part of a postal service and an air force part of national defense does not mean that the Constitution must be changed. For greater changes allowing the federal government to assume new powers, they devised an amendment process. This is a built-in process to change the Constitution by soliciting the consent of the governed, in sharp contrast to the modern notion that it can be changed by the "reinterpretations" of nine unelected judges.

Our entire constitutional framework makes clear that it could not be any other way. The Constitution contains the enumerated powers that the American people delegated to the federal government. The only legitimate way to change those powers is to have the people consent to the changes. Contrary to Gore's assertion, the Founders would have unilateral changes to federal power by the federal judiciary, a branch of the central government, to be usurpation rather than part of the constitutional design.

Go back to before the Constitution was even written to the Declaration of Independence. This nation was founded upon the idea that government derives its powers from the consent of the governed. The government has no legitimate power that people did not first grant. A "living Constitution" turns this notion on its head, allowing the federal government to have powers beyond what is constitutionally enumerated, beyond what the people have consented to, according to the rulings of its own courts.

As Joe Sobran has pointed out, the "living Constitution" isn't even consistent in how it "evolves." Its "growth" almost always appears to be in the liberal direction. Rights to privacy that support liberal views of human sexuality consistently expand while explicit Second Amendment rights to bear arms contract. The First Amendment right to free speech is expanded to include topless dancing but contracted to exclude political speech subsidized by soft money contributions. The First Amendment's guarantee of religious freedom is interpreted to prohibit local governments from "establishing religion" by allowing Christmas displays in the town square, but not to regard relatively innocuous public school commencement prayers as free exercise.

Not everything that has been done in the name of the "living Constitution" has been bad. Sometimes state and local governments have exercised constitutionally legitimate powers in the service of unwise and even unjust laws. Other times legislative leaders have been maddeningly slow to respond to social needs and changes. In those cases, it is understandable why people are willing to resort to the courts to change the status quo by tweaking the Constitution a bit, even if they will come to regret the precedent later.

But the concept is irredeemably bad. Law can be changed, but it needs to have fixed meaning in order to serve as something other than the rulers' passing fancy. To treat the Constitution as something other than an independent law in itself is to render it useless as a limitation on government power and blur the separation of powers. A living Constitution may sound good, but it will kill the rule of law upon which our Republic rests.

W. James Antle III is a senior editor for Enter Stage Right.

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