Opinion: The Dangers of a 'Living Constitution'. Lady Justice Tips the Scales

A Constitution of Convenience?

President Obama's Supreme Court Appointee Elena Kagan has been hoisted up by some as a perfect fit for the High Court because she understands American culture and will represent all of America in her decisions.  But is an impartial, constitutional court supposed to consider the public's current disposition?  The Constitution is a firm document because America is a principled nation.  When changing precedent supplants the Constitution, we lose our principles and our rights are placed in jeopardy.

WASHINGTON, DC (Catholic Online) - Should America be ruled by dead men?  Think about it.  Should we allow the teachings and principles established by people who know nothing of the way we live determine the way we live?  We have little in common, so why adopt their philosophies? 

Stanley Fish-author, professor, and blogger for the New York Times - asks some of these questions through a commentary and book review of David A. Strauss' "The Living Constitution." 

According to Fish, Krauss says the question of how U.S. Supreme Court Justices should interpret the Constitution is superfluous, and his book "tells us not to bother about that question because, odd though it might seem, the Constitution does not play a central role in constitutional interpretation."  Those who see the U.S. Constitution as a helpful guide, rather than the essential text which guides American justice, believe in what is often called a "Living Constitution" - a belief that says the text changes in meaning according to the times and the culture that uses it.  This theory is flabbergasting and requires a little explaining.  (OK, a lot of explaining.)

Swearing an Oath to Precedent?

The Supreme Court exists to decide important cases involving questions of constitutionality.  As we would expect, the Constitution has traditionally been the primary document of reference in deciding such cases.  Strauss believes that although the Constitution has been instrumental in deciding constitutionality, we should evolve and rely not on the Constitution, but instead on what he calls precedent and public disposition.  Precedent is a legal principle established by a previous court decision that is used in deciding a current case.  Strauss uses examples of when the Court used precedent more than the Constitution in its decisions, but overlooks the fact that those preceding cases are only valuable if they properly followed the Constitution.  We value precedent because it shows a continuity of interpretation in the High Court.  But if the continuity were to show abandon disregard for the original intent of the Constitution, then it would demonstrate a tradition of mistake.

Fish and Strauss are correct in their assertion that precedent should be an influential tool for Supreme Court Justices.  And precedent, as it is properly understood, is no slight to originalism - the belief that the Constitution should be interpreted according to what the Framers intended to mean.  Justices should weigh the Constitution above all else in their understanding and reasoning.  Without the Constitution, precedent is empty.  If a preceding case abandoned the Constitution, we shouldn't expect the Justices to follow blindly. 

Weakening the Highest Court

Political battles become misguided if the Constitution is viewed as a flexible, "ceremonial" document, as Strauss puts it.  Why?  Because justices should not have the ability to legislate from the bench, and decide based upon what the Constitution should mean.

Under such a view of a Living Constitution, appellate courts would be a lawmaker's one-stop-shop for legal change - not legislatures.  The importance of Congress would no longer lie in the laws that they create; but instead in the justices they appoint.  Michigan Supreme Court Justice Stephen Markman made a similar case in a speech published in Imprimis: 

"If there is no significant realm left of 'political questions,' if there are no longer any traditional limitations upon the exercise of the judicial power, then every matter coming before every president, every Congress, every governor, every legislature, and every county commission and city council can, with little difficulty, be summarily recast as a justiciable dispute, or what the Constitution, in Article III, Section 2, describes as a 'case' or 'controversy.' As a result, every policy debate taking place within government, at every level, will become little more than a prelude for judicial resolution."

Don't forget: when the US Supreme Court is full of Living Constitutionalists, the outcome of a case would be completely unpredictable. They could decide a new meaning - the result is judicial chaos, not law and order.The Constitution's meaning would be interpreted not in light of its creators intent, but in light of public opinion and current usage of terms.  Therefore, the Constitution ratified in the 1780's and 1790's could be viewed as a very different document in 2010. 

A case against a Living Constitution

It's hard to comprehend the rationale behind completely rewriting the way legal documents are read without believing that Living Constitutionalists simply do not like the original intent of the Constitution.  If you dislike power in the hands of the states, then you must hate the 10th Amendment.  If you hate the right to bear arms, then you must hate the 2nd Amendment.  If you prefer socialism, you must hate Article IV, Section IV.  The agenda is obvious: when the original intent is repulsive, you change its meaning to suit a new interpretation.

This new interpretation of the Constitution may mean that things not included as protected rights could be arbitrarily thrown in.  Democratic Senator Arlen Specter said of Obama appointee Elena Kagan, "I have an open mind about her nomination and hope she will address important questions related to her position on matters such as executive power, warrantless wiretapping, a woman's right to choose, voting rights and congressional power."  Sen. Specter loops abortion in with specific constitutional issues like Executive and Congressional power, warrants, and elections.  The Constitution says nothing of abortion, and yet Specter lets it roll off his tough as if it is explicit in the text. 

Justice Markman spoke of this issue as well:  "Professor Thomas Grey of the Stanford Law School has suggested, for example, that the Ninth Amendment constitutes a 'license to constitutional decisionmakers to look beyond the substantive commands of the constitutional text to protect fundamental rights not expressed therein.' Rights to abortion, contraception, homosexual behavior, and similar sexual privacy rights have already been imposed by judges detecting such rights in the Ninth Amendment. The problem is that, in the words of Justices Stewart and Black, this understanding of the amendment 'turns somersaults with history' and renders the courts a 'day-to-day constitutional convention.'"

Fish recognizes that Strauss' wants to set the Constitution free.  If so, then why is his belief so counter-intuitive and impossible to understand?  How would the Justices interpret, as Strauss writes, "precedents and traditions that accumulate over time?"  The job of the Justice would be more complicated with each passing year.  As more cases are ruled upon, more "traditions" must be considered.  But wait, is he talking about court traditions or public traditions (like same-sex marriage or abortion)?  If the previous courts factored in long-standing public traditions, perhaps he's referring to both.  This confusion makes the idea of a Living Constitution more restricting than an original reading of the text.

Rendering the Constitution Useless

If the US Supreme Court does not use an originalist's lens, then the Court will become the law of the land in a whole new light.  They could exceed their role and do away with freedom of speech, peaceable assembly, petitioning the government, democratic elections, the right to bear arms, habeas corpus, and anything else they wish.  How?  By redefining the terms and reissuing meaning.  They will get away with it too.  Their oath to uphold the Constitution is empty when they decide what the Constitution is and what it should mean. 

The Constitution is a firm document because America is a principled nation.  That foundation of principles weakens when we fragment and ignore what makes us great.  The reasons the U.S. Supreme Court is respected is not because they use discretion or educated bias, but because they are principled in their impartial interpretation of the most historic document in our country's history. 

Not only would the Constitution be relative and flimsy, but meaningless.  Just like with moral relativism, if the Constitution is relative, anything is permissible.  If the meaning and rigidity of legal documents are relative, then I could sign a lease for an apartment and look back at it 8-months later and decide that some of the legal terms have different meaning to me now.  But I doubt my landlord would oblige and alter the agreement.  We agreed on the conditions of the contract so we are bound to them.  Similarly, when Congress writes a bill, many words with ambiguous meaning are defined somewhere within the bill.  This is done so all members who vote for the bill understand the meaning behind what they are signing.  Why is the Constitution different?

The signers of the Constitution did not define any words in the Constitution.  The job of the Supreme Court Justice is to interpret the text and understand what the Framers meant by their language by looking at letters, speeches, and other documents of the Framers and also the decisions of other Courts confronted with similar issues to establish principles.  The Court's interpretation is a means to an end-principled Constitutionality-and is not the end itself. 

Strauss and other Living Constitutionalists are arguing for something very different.  They want to terminate the agreement that the states ratified and write a new contract.  For whatever purpose they might have, the Constitution is an inhibitor to their goals.  So what is the best way to get over this hurdle?  Weaken the Constitution. 

Living Constitutionalists sometimes seek to redefine the Constitution because they are unprincipled and hope to impose relativism on the rest of the country.  We must ensure that the people appointed to the Supreme Court believe in the principles this nation was founded upon and that our elected representatives believe in the original intent of the document which constitutes our Nations legal backbone.  Understand, when the principles of the Constitution - life, liberty, exercise of religion, etc - are relative, so is your ability to exercise them.  An unprincipled nation perverts justice, crumbles ethics, and, rejects its lifeblood. 

We are not such a nation.

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Billy Atwell is a contributer to Catholic Online and BreakPoint, and is a blogger for The Point. From the perspective of a two-time cancer survivor he encourages those afflicted with pain and struggling with faith. You can find all of his writings at his blog For the Greater Glory.

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