by Bruce Vargo

Created on: July 02, 2009

The question as posed is flawed and thus cannot be answered with either a yes or a no. The flaw in the question is that it merges a current colloquialism - a "living" document - with the notion of changes to the constitution. No one, including the proponents of "originalism," disputes that the constitution can be changed. Rather it is the method of change that is at the heart of this issue.

The proponents of a "living and breathing" document believe judicial interpretation is a valid way to "change" the constitution. Originalists, for lack of a better term, believe judicial interpretation is a method for judges to justify their desired result.

The undisputed fact is that the framers incorporated a procedure to change the constitution. They did this because they knew it was neither a "perfect" document nor designed to address the needs of future generations of our country. It was a compromise crafted by wise individuals to establish a LIMITED central government that was empowered to act on a national and international stage in the areas deemed to be of a national concern but was CO-EQUAL with, and sometimes subservient to, the sovereign states in other matters. The historical evidence shows the states hotly debated the original document, including its flaws, with many calling for a rejection of the document until it was amended to include a "bill of rights." Ultimately it was ratified thus giving force to the amendment process designed into the document.

The amendment process has been utilized many times by various generations throughout the history of our country. The process works. To the dismay of recent generations however the process is cumbersome, requiring any and all "movements" to convince a great many of people (either state representatives or congressional representatives) to secure a change to the constitution. That cumbersome process led these groups to seek out shortcuts to that process such as judicial "interpretation."

Any fair reading of the document shows that the judicial branch of the government is not empowered to "interpret" the constitution. It APPLIES the laws as enacted by the legislative and executive branches to specific situations called lawsuits. Ironically, the first unconstitutional "power grab" was not by the executive or legislative branches but by the judicial branch in Marbury v. Madison when it declared it was empowered to "interpret" the constitution. That case was one of the first proverbial "forks in the road" where this country deviated from the constitutional path cleared by the blood of patriots during the revolutionary war.

Today, we are so far off that proverbial path that, I fear, all hope for a true republic again may be lost.

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