In the United States, a document–the Constitution of the United States, the Supreme Law of the Land–binds us, the people, when we are granted citizenship. By becoming citizens of this great nation, we assure ourselves the protections outlined by this document. Unfortunately, many citizens forget these inalienable rights.
However, there are some that have not. There are still many scholars of the Constitution and between these informed citizens there is a debate that has raged since the days after the Civil War. This debate–the debate over the elasticity of the Constitution–is a healthy discourse that defines the heart of the American philosophy. On one side of the debate, there are scholars that declare that the Constitution is rigid, that only a strict interpretation of the Constitution is acceptable. Supreme Court justices such as the late Chief Justice Rehnquist and constitutional scholar Ron Paul support this argument. On the other side, though, many scholars also say that the Constitution is a “living document” that has a certain amount of elasticity to it. Again, several Supreme Court Justices and constitutional scholars agree with this point of view. So, who is right?
While the “strict interpretation” argument has several solid points, I believe that the evidence falls heavily in the favor of the “living document” argument. The legal system in the colonies, the words of the framers, the fears of the Constitution’s opponents, the Supreme Court’s solidification of its own power and even the framework of the Constitution all point to a “living document.”
However, before I delve into details about each one of those evidence points, I must point out that “living document” is unjustly correlated with “judicial activism.” Judicial activism is a situation where a judge tries to impose his own political views into a ruling–usually by completely disregarding any acceptable ruling logic. Thus, any judge, whether she has a “strict constructionist” or “living document” view, can be a “judicial activist.”
The first point to be made to support the living constitution rhetoric is that the colonies all had legal systems that were similar to the Great Britain legal system. In Great Britain, citizens were protected under the Magna Carta. This British “bill of rights” was a document that is not unlike our own Bill of Rights, though it was less extensive and less restrictive on the British government. However, there was a practice in Great Britain that was called “Common Law.” This law was flexible law that was aggregated by using all of the court cases to determine what is lawful and what is not. The Founders practiced this sort of flexible law in the colonies and, afterward, in the states. It is reasonable to say that they expected the Federal government’s legal system to act in much of the same way.
The Framers are also on record describing the powers of the judicial branch. Alexander Hamilton wrote in Federalist No.78 that “exercise of judicial discretion” is the “province of the courts” of which he gave a specific example of “two contradictory laws” where the courts have the power “to liquidate and fix their meaning and operation.” This “province of the courts” to “exercise judicial discretion” sounds familiar to the Common Law practices of the colonies and Britain, as discussed before.
The opponents of the Constitution wrote a series of letters that are now in a collection called the “Antifederalist Papers.” These letters were written to oppose the Constitution and are useful in attempting to discover what the Founders feared about the Constitution and government in general. It can also be used to determine the intent of the Constitution, as the arguments written in these letters elaborate on each part of the Constitution more than the Constitution does itself! In Brutus 5, one of the opponents of the Constitution declared:
In the 1st article, 8th section, it is declared, “that Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts, and provide for the common defence, and general welfare of the United States.” In the preamble, the intent of the constitution, among other things, is declared to be to provide for the common defence, and promote the general welfare, and in this clause the power is in express words given to Congress “to provide for the common defence, and general welfare.” — And in the last paragraph of the same section there is an express authority to make all laws which shall be necessary and proper for carrying into execution this power. It is therefore evident, that the legislature under this constitution may pass any law which they may think proper.
He argued that the Congress would have power to do what it wished with the elastic clause (which, sadly, has not been restricted and Brutus has been proven correct). This is evidence that the founders intended for the document to have some elasticity.
In 1801, John Marshall was appointed Chief Justice of the Supreme Court. Before his appointment and during his first two years as the nation’s top Justice, the Court had no real power. The Court’s decisions reached no further than the individual cases which were brought before it. However, Chief Justice Marshall changed that in Marbury v. Madison, 1803. In this case, Marshall declared that the judiciary branch has the power of judicial review–the same concept that was exercised in state judiciaries as well as in the judiciaries of the colonies. This power was not directly outlined by the Constitution but it was declared shortly after the Constitution was ratified and it was during the times of the founders. To my knowledge, not one of the Founders criticized the decision (though, Jefferson was angry. But, it was for different reasons other than Constitutionality).
For my final point of evidence, the framework of the Constitution itself creates an aura of openness and flexibility. The words of the Constitution are very vague. In some instances, certain powers are left open to interpretation–the judicial branch had nearly no direction from the Constitution! Also, the Bill of Rights weren’t properly ratified and added to the Constitution until 1791! The vagueness of the Constitution can be seen when compared to other constitutions. For example, the length of the Constitution, in words, is 4,543. By comparison, the South African Constitution has over 50,000 words! By all counts, the South African constitution is specific while the United States Constitution is vague. The vagueness of the United States Constitution leaves for flexibility in the government.
The Constitution is a living document. However, I must stress that a living document does not mean that the government has free reign to do what it wishes! Instead, power must stay consolidated with the people, as was the intent of the Founders, and the people are the only ones that should be able to relinquish their power to the government. The government should not direct the lives of people nor should it abuse the flexibility of the Constitution. Instead, I believe that the Constitution’s flexibility should be considered minor leeway for the Congress instead of a free-ranging usurpation of power from the people. Major changes to the Constitution should not be, and cannot be, overruled by the laws of Congress. Instead, amendments should be made in order to change the Constitution itself.
Also, the Commerce Clause and the Elastic Clause are being abused by the Congress and the federal government. In the 9th and 10th amendments, the powers that are not enumerated to the Congress are reserved to the states and, ultimately, the people. Universal healthcare does not “promote the General Welfare,” it enforces it! Such a law would restrict the freedoms of the people–the very freedoms that are reserved to the people. Congress does not have the authority to do this even under a living Constitution.
As one last point, whether the Constitution is a living document or not is a great argument to research and learn about. Many scholars would disagree with me on my stance that the Constitution is a living document. In fact, most of my conservative friends would completely disagree with me. However you feel, though, I think that promoting such a discussion is beneficial for all. No matter whom is right, we all win; we win back the defining principle that makes Americans uniquely American: public discourse. If we don’t fight for our Constitution, living or dead, it will slowly disappear into oblivion. None of us want that.
From Guest Blogger Derek Hammer