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Add to FavoritesThe 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.
Learn more about this author, Kevin Mccaffrey.
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No
In a recent interview with U. S. Supreme Court Justice Antonin Scalia on the CBS news program 60 Minutes, correspondent Lesley Stahl raised several questions regrading the U. S. Constitution, since our U. S. Supreme Court is charged with interpreting our Constitution and normally making a final decision on any Constitutional issues.
Justice Scalia practices a philosophy of what he calls "originalism", meaning that he chooses to interpret our Constitution based on the meanings and intentions of the people who ratified it over 200 years ago. He went further to say, "Society doesn't change through a Constitution."
Even though our Constitution is certainly an enduring document that we must all defend each and every day, our Constitution is not a "living" document that requires amending each time a rogue judge wants to create "rights" not actually in our Constitution or when we want the Constitution to say what we would like for it to say?
The words in our Constitution should be interpreted with the same meanings of the people who ratified it?
Let's look at some good examples:
Here are the words of Article II of our U. S. Constitution: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." When this article was written, weapons were necessary for protection and law enforcement. What have we done with it today? Well, we have totally eliminated the words "A well regulated militia, being necessary to the security of a free state" and kept the rest. Now some people actually believe that we have the right under our U. S. Constitution to buy assault rifles to practice with in our backyard or to go deer hunting with an AK-47. The Constitution didn't say that at all.
What about Roe v Wade?
Our U. S. Supreme Court made a 7 to 2 decision to allow a woman to kill her baby under the "Privacy" provisions of the U. S. Constitution. First of all, I cannot find the word "privacy" in the Constitution. I challenge anyone to show me where the word "privacy" appears. So, the highest court in the land has made a decision based on a provision of our Constitution which doesn't even exist. In this case, the Court has made the Constitution say what they would like for it to say.
Let's look at "Free Speech":
Here are the words of Amendment I to our U. S. Constitution: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
What have we done with the First Amendment? Well, the courts say that the desecration and burning of our U. S. Flag, our symbol of freedom, is protected under the First Amendment. Where does the First Amendment say that? Again, our courts have made the Constitution say what they would like for it to say.
Separation of Church and State:
Again, we use the First Amendment to prohibit prayer in schools or display a nativity scene on public property. The Constitution, first of all, does not even contain the phrase "separation of church and state", what it does say is "Congress shall make no law prohibiting the free exercise thereof . . ." Our founding fathers didn't want the government to establish and promote one set religious belief, it doesn't take an attorney or a judge to understand that. I just can't believe that their intentions were to ban school prayer.
What our attorneys and judges seem to do is read the Constitution and then make the decision, "Well, they said this, but they really meant to say this".
Our U. S. Constitution was good enough for the people 200 years ago and it's good enough for us still today, but it is not a "living" document that requires revising every time someone gets the whim to change it. Our founding fathers were very intelligent and they knew and understood what they were doing. I really don't think they got together and decided that this was just a draft and whoever comes along can make whatever changes they think is necessary at the time.
Learn more about this author, Ken Bradford.
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