"If the foundations be destroyed, what can the righteous do?" ―Psalm 11:3
All judges take an oath to support the Constitution, but some read new and strange meanings into our founding document. A new school of constitutional interpretation has arisen in the last 150 years called the “Living Constitution” approach. Followers of this school argue that each generation must be free to read new meanings into the Constitution, recognizing new “rights” the Framers never imagined.
Thus, Justice Douglas in Griswold v. Connecticut (1965) could write that “specific guarantees in the Bill of Rights have penumbras [shadows], formed by emanations from those guarantees that help give them life and substance.” Justice Brennan in Furman v. Georgia (1972) could say that “the Eighth Amendment ‘must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’” Justice Blackmun in Roe v. Wade (1973) could say that abortion, although not mentioned in the Constitution, can be found lurking in these penumbras and emanations. And Justice Kennedy could say in Obergefel v. Hodges (2015) that the term “liberty” in the 14th Amendment includes same-sex marriage.
Using similar reasoning, liberal justices stretched the General Welfare Clause, Commerce Clause, and the Necessary and Proper Clause to give the federal government powers that even Federalists like Alexander Hamilton never imagined.
At first glance, the “Living Constitution” approach sounds attractive. Who would want a dead Constitution? But it is dangerous to liberty for many reasons, including the following:
1. It is contrary to the Framers’ intent. If “the sense in which the Constitution was accepted and ratified by the nation ... be not the guide in expounding it,” James Madison declared, “there can be no security for … a faithful exercise of its powers.”
Likewise, Thomas Jefferson wrote, “The Constitution, on which our Union rests, shall be administered by me according to the safe and honest meaning contemplated by the plain understanding of the people of the United States, at the time of its adoption.”
2. Living Constitution proponents forget that the same Court that can read rights into the Constitution that aren’t there, can also read out of the Constitution rights that are there. Are we really heading for a utopia with unlimited freedom for all? Or could we just as easily be heading into a dark age of oppression and terror?
3. The Living Constitution approach gives unlimited power to judges. “When I use a word, it means just what I choose it to mean – neither more nor less,” Humpty Dumpty says to Alice in Lewis Carroll’s “Through the Looking Glass.” “The question is whether you can make words mean different things,” Alice observes, causing Humpty Dumpty to respond, “The question is, which is to be master – that’s all.”
Humpty Dumpty is right. If judges are free to make the Constitution mean whatever they want it to mean, then judges have become our masters. Rather than the “least dangerous branch,” as Hamilton described the judiciary in Federalist Papers Nos. 76 and 81, the unelected Supreme Court has become the preeminent branch of government, with unlimited power to veto or reinterpret anything any other branch of government says or does. This is not the form of government the Framers gave us, nor is it the form of government most Americans want.
4. The Living Constitution approach is based squarely on Darwinian thought. “[The Constitution] is accountable to Darwin, not to Newton,” Woodrow Wilson wrote in “The New Freedom.” “All that progressives ask or desire is permission – in an era when ‘development,’ ‘evolution,’ is the scientific word – to interpret the Constitution according to the Darwinian principle.” False premises usually lead to false conclusions.
This does not mean the Constitution can never be changed. “If, in the opinion of the People, the distribution or modification of the Constitutional powers be at any particular wrong, let it be corrected by an amendment in the way the Constitution designates,” George Washington said in his “Farewell Address.” “But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customer weapon by which free governments are destroyed.”
The Framers recognized that, unlike the Bible, the Constitution they drafted is not infallible. They may have made mistakes, and new conditions may require changes. That’s why they included Article V, which sets forth the process for amending the Constitution. It is better to amend the Constitution when the necessity arises rather than stretch it beyond recognition by judicial misinterpretation. In the hands of judges who do not respect the original text, Jefferson wrote, the Constitution is nothing but a “ball of wax” (today he might have said silly putty).
So, do we want a “dead” Constitution? No! But a “Living Constitution” really is a dead Constitution. A constitution that can be twisted to mean anything any judge wants it to mean is the same as no constitution at all.
Instead, we want an “enduring Constitution,” one that stands for the ages. A Constitution that, in the words of its Preamble, “secure[s] the Blessings of Liberty to ourselves and our Posterity.”
That’s what the Framers thought they gave us. And that’s what the Foundation for Moral Law is fighting for today.
If you have constitutional concerns about religious liberty, the sanctity of life, or invasive government power, please feel free to call the Foundation at (334) 262-1245.
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law (www.obcl.edu) and as Senior Counsel for the Foundation for Moral Law (www.morallaw.org).
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819news.com.
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