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I'll Take My Constitution Good and Dead, Thank You

I take serious issue with people who claim we should view our Constitution as a “living” document, e.g., one that must be interpreted afresh from time to time because the plain or obviously intended meaning of its provisions may no longer be “relevant” to modernity. 

My problem with that line of thinking is fairly straightforward, and really has nothing to do with any sort of reverent fealty to the document. Which isn’t to say I have no reverence or fealty to it, but that it’s neither perfect nor perfectable, as nothing devised by fallible human beings can ever be. But neither is it anywhere near as imperfect as those who breezily dismiss it as an antiquated charter more suited to a low-density, agrarian society would have us believe. Those who habitually overstate how “different” things are today, and maintain a dogged, if mostly unexamined insistence that the passage of a shade over two centuries has wrought such profound and lasting change to the fiber of the republic as to anachronise the document that produced its essential structure lack a grasp of human nature anywhere near so firm as that of the framers. The wisdom underlying our Constitution is as forceful and relevant now as always. Our charter acknowledges eternal human shortcomings and the need to limit government power accordingly. It was written by men educated in the classics and well-versed in the philosophical and metaphysical conundra perennially inherent to the human condition. In the broad sense, our Constitution is remarkably well-founded and wisely and adroitly conceived. This is why it has endured, and why those who would dismiss it merely for something as irrelevant as its age exhibit little depth of understanding of its great and lasting strengths. Times change. Technology and demographics change. Human beings . . . not so much.

My issue with those who would discard or modify it frequently to suit what they perceive as changing times is that we already have–and always have had–a “living” Constitution, just not in the way they mean it. From its inception, it has been amendable if the body politic sufficiently wishes it to be so. There’s a perfectly unambiguous process set forth in Article V that spells out just how to do this. Amendments to the Constitution must be ratified by two thirds of the Senate and House, then by two thirds of state legislatures. 

Yes, this is a major undertaking–by design. Lives, fortunes, the dispositions of vast resources, how we define basic human rights and other implications too broad and numerous to list depend upon constancy in constitutional jurisprudence. It should never be amended for light or frivolous reasons, or moved in some direction or other by passing whims and fancies (as is done with quite ridiculous frequency to many state constitutions, such as Oregon’s). Still, the thing is far from impossible, given that in the 226-year history of the republic, it’s been done 18 times (there are 27 amendments, but the first 10–the Bill of Rights–were ratified all in one clatter). Not only is it not impossible, there have been periods in our history (1865-70, 1913-33, 1961-71) when it happened quite frequently. 

But most proponents of the “living” Constitution idea aren’t referring to this slow, deliberative, prudent process that ensures the overwhelming majority of citizens are solidly on board, and that a change so important as to call for amendment is more persistent than ethereal. Rather, they prefer to short-circuit the prescribed process by substituting the judgment of a very small number of elite lawyers in black robes for that of a supermajority of citizens and their elected representatives. It’s particularly ironic that the same people who place such sycophantic faith in unelected oligarchs to make the right decisions about what our Constitution “ought” to mean–particularly if their desired interpretation differs either from the obvious intent of the framers or English intelligently read–are, in other contexts, the first (and loudest) to scream about “elitism” and this or that policy being counter-majoritarian. 

They are also, of course, the same people who would tout something like Obamacare as the “settled law of the land” five minutes after its enactment, yet treat the 226-year-old Constitution as infinitely malleable. The whims of such unstable personalities can admittedly be challenging to keep up with.

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Reader Comments (1)

I read your Blog! Your skills are appreciated!

June 25, 2015 | Unregistered CommenterDarrin Jones

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