The Pernicious ‘Living Document’ Theory of the Constitution

January 7, 2020 Updated: January 9, 2020
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Commentary

Recently, former Vice President and current presidential candidate Joe Biden publicly shared his vision for the U.S. Supreme Court.

First, he said that he would nominate former President Barack Obama to the court if Obama would accept the nomination. (Obama is on record as saying, “No, thanks.”) This was a clever move. Biden knows that Obama remains popular among Democrats, and yet, by naming Obama and nobody else, he has kept hidden who his actual nominees would be.

Unlike President Donald Trump, who boldly provided a short-list of candidates before the 2016 election, Biden played it coy. He didn’t want to name a radical, who would turn off Democratic moderates, nor a moderate, who would upset the left wing of his party.

Second, Biden played the gender equality card, saying, “I’ll be satisfied when half the court is women”—as if one or two more females on the Supreme Court will guarantee justice in the United States.

If he wants the court to reflect current demographics, he could have said he would nominate either a Protestant or a “no religion” American. The current court has five Catholics, three Jews, and only one Protestant, even though there are twice as many Protestants as Catholics in the United States, and eight or nine times as many people of “no religion” as Jewish. In the present reality of identity politics, gender apparently matters more than religion.

Thirdly, and of far greater significance than his other two comments, Biden said he would nominate individuals who view the Constitution as a “living document.” By “living document,” progressives mean that the Constitution shouldn’t impose 18th-century conventions and practices on 21st-century Americans and that the Constitution’s meaning should adapt with the times.

Altering the Constitution

The “living” constitution is a straw man. Of course, we shouldn’t be anchored to the 18th century. In his Farewell Address, President George Washington declared, “The basis of our political systems is the right of the people to make and to alter their constitutions of government.” The key factor is how the Constitution should be altered.

Washington maintained that corrections, clarifications, modifications, etc. be made “by an amendment in the way which the Constitution designates. But let there be no change by usurpation.”

By “usurpation,” Washington meant anything from clever verbal sophistries to the naked power play embodied in former Supreme Court Chief Justice Charles Evans Hughes’s arrogant assertion that “the Constitution is what the judges say it is”—even if the new meaning contradicts what it had meant for generations.

Washington warned that even if the reinterpretation of the Constitution achieved a short-term good, it wouldn’t be worth it, for ignoring constitutional strictures “is the customary weapon by which free governments are destroyed.”

This vital point about constitutional integrity apparently is too subtle for the left to grasp. They’re so intoxicated by their zeal to get what they want that they either fail to believe that the expanded power of government will ever be used in a way of which they disapprove, or they’re willing to roll the dice about the future in exchange for getting something they want today.

The advocates of the Constitution being regarded as a “living document” that as few as five Supreme Court justices can alter by creative or tortured reinterpretation don’t understand what the purpose of a constitution is.

Constitutions exist to define and limit the powers of government. Where there’s a tyrant or absolute monarch, there’s no governing constitution. The law is whatever the despot decrees it to be. (There may be some sort of window dressing “constitution,” as in the former USSR, but those are legal fictions.)

For people to be free, they must be secure in their rights; the power of government to trample those rights must be circumscribed by a constitution that has teeth. The concept of protecting people from government power, articulated so eloquently in the Declaration of Independence, is spelled out explicitly and unequivocally in the Ninth and 10th Amendments to the Constitution.

The Ninth stipulates, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The 10th: “The powers not delegated to the United States [government] by the Constitution … are reserved to the States respectively, or to the people.”

There you have the essence of the American theory of government: Individuals have rights and those rights must be protected from government power. According to our founders, the only legitimate exercise of government power is to protect rights. Government must not impair, abridge, or nullify citizens’ “unalienable rights.”

It was this rights-based ethos that impelled Thomas Jefferson to write, “In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution.”

Obviously, political philosophies have changed considerably since Jefferson. Biden’s socialist-dominated Democratic Party loathes the limitations that the Constitution places on their desire to impose their grandiose plans on us.

Obama chafed at the chains of the Constitution, lamenting in a 2001 radio interview that the Supreme Court “didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution.”

At least that complaint about the Constitution was honest and made in a respectful manner. Sometimes the left’s resentment boils over into a seething hatred for the Constitution. One example: In 2011, when the Republicans retook the House of Representatives and proposed to open the 112th Congress by having the Constitution read aloud, it was too much for Rep. Jerry Nadler (D-N.Y.), who denounced the reading of the U.S. Constitution as “propaganda.”

If Supreme Court majorities are allowed to reinterpret the Constitution as they see fit, then the so-called living document is reduced to a dead letter. If the court can ignore, bypass, or nullify any constitutional stipulation today, then what’s to keep it from ignoring, say, the First Amendment tomorrow? (Actually, the First Amendment already is decaying, as we see with “free speech zones” on college campuses, and attempts to dictate that anti-abortion religious groups pay for abortions.)

When a constitution’s provisions and protections can be revised by as few as five unelected justices, such a constitution is a weak guarantor of anyone’s rights. That’s where we find ourselves today. Numerous provisions of the Constitution already lie in tatters. (See my October 2018 article “Savagery, Civilization, and Constitutional Government.”) Indeed, the U.S. Constitution might be in a terminal state already.

If Biden or some other presidential candidate appoints a few more justices to the Supreme Court who view the constitution as a “living” text, it might be time to perform last rites for that hallowed document.

Mark Hendrickson, an economist, recently retired from the faculty of Grove City College, where he remains a fellow for economic and social policy at the Institute for Faith and Freedom.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.