A “Living Constitution”?
Prior to Franklin D. Roosevelt's “New Deal” expansion of central government authority in the 1930s, the courts were still largely populated with originalists, those who properly rendered legal interpretation based on the Constitution's “original intent.” But Roosevelt grossly exceeded the constitutional restrictions on his office and that of the legislature in his ill-conceived efforts to end the Great Depression – which ultimately ended during World War II, but not before having long outlasted FDR's social and economic engineering.
So determined was Roosevelt to enact his social welfare policies, that in 1937, he attempted to increase the number of justices on the Supreme Court with the expectation that his appointees would give him a majority and do his political bidding.
It is no coincidence that the term “living constitution” was coined the same year as the title of a book on that subject.
He failed with that approach, but during his unprecedented first three terms, he appointed eight justices to the High Court, who radically accommodated their “interpretation” of the Constitution to conform with Roosevelt's expansion of central government power.
In effect, Roosevelt successfully converted the Judicial Branch from one of independent review according Rule of Law to one of subservience according political will.
In the decades that followed, the notion of a “living constitution,” one subject to contemporaneous interpretation informed by political agendas, took hold in federal courts. With increasing frequency, “judicial activists,” jurists who “legislate from the bench” by issuing rulings at the behest of like-minded special-interest constituencies, were nominated and confirmed to the Supreme Court.
This degradation in the Rule of Law was codified by the Warren Court in Trop v. Dulles (1958). In that ruling, the High Court noted that the Constitution should comport with “evolving standards...that mark the progress of a maturing society.” In other words, it had now become a fully pliable document, “a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please,” as Thomas Jefferson had warned. Indeed, the Court had mutated into “a despotic branch.”
Since then, judicial despots have not only undermined the plain language of our Constitution, but have also grossly devitalized the Bill of Rights.
For example, the First Amendment reads plainly: “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.”
Once again, in plain language, “Congress shall make no law...”
But the courts have ruled this restriction applies to virtually every public forum.
Meanwhile, judicial despots and legislators are endeavoring to supplant authentic freedoms of speech and of press, while asserting that virtually all other mediums of expression constitute “free speech.”
As another example, the Second Amendment reads plainly: “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.” And yet, certain executive, legislative and judicial principals are unceasing in their efforts to enfeeble this essential right.
During the 1788 Massachusetts Convention debates to ratify the U.S. Constitution, Founder Samuel Adams stated: “The Constitution shall never be construed...to prevent the people of the United States who are peaceable citizens from keeping their own arms.”
That same year, James Madison wrote in Federalist No. 46, “The ultimate authority...resides in the people alone. ... The advantage of being armed, which the Americans possess over the people of almost every other nation...forms a barrier against the enterprises of ambition.”
In his Commentaries on the Constitution (1833), Justice Joseph Story, appointed to the Supreme Court by James Madison, affirmed the pre-eminence of the Second Amendment: “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of the republic; since it offers a strong moral check against usurpation and arbitrary power of the rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”
Similarly, Founder Noah Webster wrote, “Tyranny is the exercise of some power over a man, which is not warranted by law, or necessary for the public safety. A people can never be deprived of their liberties, while they retain in their own hands, a power sufficient to any other power in the state.”
Equally offensive to our Constitution is the manner in which the 10th Amendment's assurance of States' Rights has been eroded by judicial interpretation.
The 10th Amendment reads plainly: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” However, the central government has routinely violated this amendment with all manner of oppressive legislation and regulation over what should be, according to the Rule of Law, matters “reserved to the States respectively, or to the people.”
But by the 1980s, judges had become the final arbiter of our Constitution, and its adulteration was so commonplace that liberal Supreme Court Justice Thurgood Marshall was brazenly lecturing on “The Constitution: A Living Document,” in defense of constitutional interpretation based upon contemporaneous moral, political and cultural circumstances.
More recently, Justice Antonin Scalia writes, “[There's] the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break. But you would have to be an idiot to believe that; the Constitution is not a living organism; it is a legal document. It says something and doesn't say other things.”
Justice Clarence Thomas follows, “[T]here are really only two ways to interpret the Constitution – try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no basis in the Constitution. ... To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.”
On the political consequences of a “living constitution,” Justice Scalia concludes plainly, “If you think aficionados of a living constitution want to bring you flexibility, think again. ... As long as judges tinker with the Constitution to ‘do what the people want,' instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically.”