Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

June 27, 2007

Counterpoint: The “Living Constitution” Is The Road To Serfdom

by Doug Mataconis

In his opening post, our Guest Blogger Derek Hammer states that the United States Constitution is, and should be considered to be, a living document.

In at least one interpretation of that phrase, I agree with him.

As we sit here, less than three months shy of the 220th anniversary of the date that the Philadelphia Convention sent the Constitution to the States for ratification, it is clear that the document itself is alive and that, notwithstanding several decades of bad decisions by the Supreme Court and lower Federal Courts, the core protections of individual liberty that were created in Philadelphia in 1787 remain intact.

However, the debate over a “living Constitution” vs. strict constructionism is far more complicated than that.

Derek’s core argument, which I agree with on many levels is this:

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.

This argument is not entirely unlike the argument that legal scholars like Randy Barnett have made in favor of what amounts to a libertarian version of judicial activism. Put a bunch of libertarians on the Supreme Court, give them the 9th and 10th Amendments to work worth, and let hell break loose.

The problem with that argument is that ignores political, and in some sense, legal, reality.

The natural tendency of the state is to expand it’s power.

This is not an original insight on my part, it’s been noted by classical liberal/libertarian thinkers since the Enlightenment. A legal theory that asserts that the founding document of the nation, in this case the U.S. Constitution, is open to interpretation based on contemporary standards, is an open invitation to the expansion of state authority over the individual.

Quite honestly, this isn’t even a matter of academic argument. It’s a matter of what has actually happened. Beginning even with Marbury v. Madison, the case that established the Supreme Court’s authority to declare a law passed by Congress unconstitutional despite the fact that no such authority was granted by the Constitution itself, the process of removing the reality of authority in the United States from what the Constitution actually said had begun. The process continued with cased like Dred Scott and Plessy v. Ferguson and then reached their height in the New Deal era when the Supreme Court, temporarily at least, had the audacity to tell Franklin Roosevelt that he didn’t have the authority to turn the United States into a semi-socialist state. And then, he challenged them, and though he failed, they caved and the result is history.

I could go on, but the point is this. The history of the idea of the “Living Constitution” is a history of the expansion of the power of the state and the shrinking of individual liberty and autonomy.

And, to paraphrase William F. Buckley, Jr., I’d rather be governed by the words written 220 years ago by a group of American Patriots than by the whims of several hundred Federal Judges.

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  • Kaligula

    Yep, imagine a libertarian court that used the 9th Amendment to resurrect the Lochner Era of Property rights while simultaneously extending Blackmun’s personal rights ideology to include the right to self medicate, pornography, gay marriage, etc and then use the 14th amendment to force it upon the states. No doubt some(and I include myself) wouldn’t mind living in a free market version of George Soros’ “Open Society,” but I suspect others might regard this as tyranny.

    For me the question whether the consitution is or should be viewed as a “living document” is empirically self-evident. For better or worse, it obviously is and will continue to be so until like all living things, it dies.

  • Ryan

    I think the Constitution was designed to be flexible and “living” enough to promote liberty. That was the intention of the founders when they wrote the document. Unfortunately today the power is taken too far and been abused by the government.

    When you look at this question, we have to realize that living does not imply leftist, right winger, or even libertarian. It just means we can read in between the lines. The interpretation is what matters here. For example, the Constitution never says we have a separation of church and state. It says that there will be no official state religion and that we are free to hold our own religious beliefs; but we read between the lines and say (at least in theory) that church and state are separate entities: something that, I believe, promotes liberty. All in all, it’s not the idea of the Constitution being living that expands government power; it’s the interpretation and those who interpret it.

  • Derek

    My last name is Hammer, not Hammond. Though, both are “cool” in the own regard but for different reasons.

    Also, good post by Mr. Mataconis. His discourse and argument are valid and heavy consideration should be given to his points (that is, before completely conceding to mine! All said in jest, of course).

  • Doug Mataconis


    My mistake, sorry. I’ve fixed it.

  • Rob Davidson

    Beginning even with Marbury v. Madison, the case that established the Supreme Court’s authority to declare a law passed by Congress unconstitutional despite the fact that no such authority was granted by the Constitution itself, the process of removing the reality of authority in the United States from what the Constitution actually said had begun.

    The Constitution clearly says that the courts are bound to uphold it and all laws enacted under it’s authority, which certainly means that the courts should not uphold laws that contradict the Constitution or are not authorized by it. That doesn’t mean that the courts are the only arbiters of constitutionality, however, nor does it give them any authority to dictate what the laws should be.

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