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Is the US Constitution a "living" document, which should change over time?
Results so far:
| Yes | 56% | 347 votes | Total: 620 votes | |
| No | 44% | 273 votes |
Yes
by Kevin Mccaffrey
Created on: December 21, 2009 Last Updated: December 23, 2009
The question of whether the U.S. Constitution should be a “Living” document appears to lie more with the changing interpretations of the Constitution’s existing content as a matter of law than the mechanism by which the document itself can be changed.
Article V of the Constitution clearly defines the procedures by which changes of content can be made and as a matter of technicality the document can be said to be “Living” through this fact alone. However, I think anyone who has ever analyzed Constitutional Law and its interpretation through history is well aware of the malleable nature of the Law of the Land.
What brought about this reality is the assumption of the power of Judicial Review of the Constitution by the Supreme Court under Marbury v. Madison. Here is the first evidence of the Constitution being viewed as a “Living” document whereby one branch of the government in essence annexed powers not specifically assigned to it by the document’s creators.
The environment that allowed this to occur was one mostly of practical considerations. In Marbury you had a situation where a legitimate legal petition was presented that required a judgment of law by some formal authority whose responsibility was not clearly spelled out in the young and somewhat incomplete U.S. Constitution.
While Article V would have provided a mechanism for the Federal and State governments to correct this oversight, real relief of the situation at hand could not have been handled in an expeditious manner and would likely have required an arduous multi-year process to propose, discuss, agree and vote on a measure to properly assign this authority.
The victory in the Marbury case was not that the Supreme Court assumed this power but that our new representative government developed a mechanism to flexibly address gaps in the legal language to bring about a functional enactment of law to address issues of either oversight or contentious deadlock.
Had the Constitution’s creators attempted to clarity every individual gap or point of contention, we would have not formed a government and would still be debating the issues today. Preferable as it may be that all rights and responsibilities of government be clearly spelled out in the text of the Constitution, the reality is that human nature prevents lawmakers from being ultimately thorough.
The most contentious issues of the day will always be the ones to bear the most scrutiny and by design are most likely to deadlock in the hands of lawmakers (i.e. the abortion debate).
Despite the reality of deadlock, we as a people still are required to rule by law and it is unacceptable to have no mechanism to apply some version of law where such a void exists. It is due to this that we have the Supreme Court, flawed as it may be, to apply some version of law hopefully in the best spirit of the values defined in the Constitution.
Our highest court whose members rank amongst the most esteemed legal scholars, must take on this function as it is best positioned to make such assessments and act as the executor of arbitrary law.
This no doubt is objectionable to many in the voting classes but those who are dissuaded still have the opportunity to attempt to resolve their frustrations via Constitutional modifications through Article V.
Think then of the Constitution as a “Living Document” as a legal doctrine unto itself that represents the last piece of the puzzle that completes the reality of ultimate rule of law by the people and for the people.
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No
by William Armstrong
Created on: January 14, 2010 Last Updated: July 28, 2010
The theory that the Constitution is a “Living Document” has been dominant since F.D.R. tried to pack the Supreme Court in the late 1930’s. The idea of an evolving Constitution has helped to transform our government from a limited one, charged with protecting individual rights, into a Nanny State that promises to take care of all our needs and make all our decisions.
The Judiciary, since the Great Depression, has made laws and created rights based on general statements in the Bill of Rights ignoring specific provisions in the 9th and 10th amendments to limit government functions.
Our Constitution was created to protect our inalienable or God given rights and to prevent arbitrary government intrusion into our lives. By the time the Constitution was written America had been subject to oppressive British rule for two hundred years. Our founding Fathers knew from experience what type of government they wanted to avoid.
The Constitution divided our government horizontally on the federal level into three branches; executive, judicial and legislative and vertically into federal, state and local governments. The purpose was to institute a system of checks and balances to promote accountability and prevent seizure of power by any single branch.
The 9th and 10th amendments purposely enumerates (lists) the specific functions of all branches and levels of government. The purpose being to create a government that is constitutionally limited. The Constitution states that whatever rights and powers are not given to the government are reserved for the people, making it clear that the government is to be a servant not a master to the people.
The concept of The Constitution being a Living document refers to theory that its interpretation needs to evolve as our culture and moral standards change. The central argument being, that how could you directly apply a two-hundred year old legal document to modern times. Two hundred years ago there were slaves, women had no voting rights, there were no food stamps and abortion wasn’t an issue.
Some proponents of the Living Document, even go on to say that the founders intended the Constitution to evolve as society changed because it was written in general terms thereby leaving room for broad interpretations.
On the surface, the argument for a Living Document sounds reasonable and fair, they reason that they would prefer a “Living document” to its implied opposite, a “dead document” written two hundred years ago by those they consider to be slave owning, sexist, religiously fanatical and wealthy white guys.
The problem with Living document theory is that the final authority for legal decisions are judges not the Constitution. Supreme Court Justices get to decide how and when our morals and culture have evolved or changed. An example of this might be that of an older law prohibiting eighteen year olds from driving a car. Judges may surmise for instance, that because there were no seat belts when this law was written that it would be reasonable to amend the law to say that only eighteen year old's without seatbelts are prohibited from driving.
We can see from this semi- humorous example how the clear intent of the law was altered by permitting judges to interpret the law based on the evolving cultural times such as is the case with the Living Document theory. A Supreme Court judge can now effectively enact a new law without a vote through court decisions, in addition to their legitimate role of interpreting the law as written. So the judges can now usurp the legislative function of Congress to effectively make laws by judicial fiat. Supreme Court Judges have now evolved into all wise philosopher kings who make our rules for living and who tell us what to think.
Many are not aware that the executive and legislative branches are also charged with upholding and protecting the Constitution. Federal employees, military members, civil servants and Congress all took an oath to support and defend the Constitution. Now if these Supreme Court Justices are the only ones wise enough to understand Constitutions’ meaning what are rest of us swearing to uphold? Something that can be altered at a judges whim? Why wouldn’t it be meant to be understood by all?
As most of us know it takes a two thirds majority in both houses of congress to amend the Constitution. There have only been 17 admendments passed after the first ten in our Bill of Rights were passed in 1787. Cooperation of all the branches and levels of government are also necessary to advance new legislation. Also governmental checks and balances along with the enumeration of government powers provides accountability and makes it very difficult to alter our laws. Its no accident that changing or making new laws are cumbersome by design, the founders did that on purpose. Now why would all this be necessary if the courts could just change the law through means of ruling by evolving interpretations as is the case with a Living Document approach.
The Living Constitution threatens the inalienable rights and protections our forefather fought and died for, by consolidating power in government hands and changing our limited government to an unlimited one where rights are given by the government and the only protected rights are government rights.
Learn more about this author, William Armstrong.
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