You Can’t Have Your Living Constitution And Eat It Too
Jonah Goldberg has a masterful editorial this week on the hypocrisy of those wanting a “Living Constitution” versus those who would rather we stick to the easily identified original intent. He starts it with a quote from Slate’s legal correspondent, Dahlia Lithwick.
"We do not insist that our medicine, our technology, or even our entertainment, all remain in an obsolete state; why would we demand that the law be given such treatment? It seems absurd to suggest that we can change the speed limit to reflect improved technology but we cannot interpret the Constitution to reflect improvements in society."
Her assessment is interesting not just because of its towering arrogance, which Goldberg quite pithily takes apart, but because it provides an interesting technical view of how the Left justifies the whole concept of a “Living Constitution”. To the Left, in general, it really is no different than a radio or television and no more immutable than an encyclopedia or dictionary. After all, even Webster’s updates for slang.
And I’m not sure if she recalls law school, but the law has in fact changed quite significantly over 200 years within the framework of the Constitution. Federal laws have worked well within that frame and in the last sixty years well without it as well. The US legal code would make the librarians at Alexandria think about cutting back a little. The Constitution is not just some “law” that needs to be kept mutable to be saved from obsolescence. The Constitution was also not designed as a socially mutable document that would change with the hemlines for a given year.
The Constitution narrowly defines the powers and duties delegated to the federal government by the preexisting state governments. As an afterthought, and because there were paranoids among the Conventionalists who thought that some day people in the federal government might try and extend their powers over what were seen as inalienable rights. Now, not only are those not sacred and immune from attempts by “social engineers” to erase or modify them, but the Constitution is being turned into a social experiment by figures on the Left to give some semblance of legitimacy to their otherwise illegitimate programs.
If the Constitution is not susceptible to the whims of demagogues and changing cultural trends, then the limits on power it imposes and the freedoms it enumerates can be eternal. This was the intention of the Founders, plain and simple. If something did occur that required a significant revision of the language of the Constitution (such as the question of slavery), that mechanism was also provided in the form of Amendments. That worked for over 150 years until socialists just started bypassing it, but they have never been able to claim that they have a real mandate to do what they do, because there is no real Constitutional basis for it.
But if it is susceptible to such whims of social engineering as the Left has tried to employ and if it can be made to see whatever those in power want it to say merely with a claim of “changing with society” or the needs of some majority or minority, then it might as well not exist. It might as well be written in pencil and drafted by a 2nd grader for all the legitimacy it would have as the foundation for all our laws, and by consequence all our laws and government would be equally as illegitimate. They might as well resurrect the concept of “Divine Right” (no pun intended) to explain why we must no longer eat meat or why we must no longer be able to defend ourselves or basically act like Parisians.
With that in mind, I can see no realistic or effective argument to explain why or how the Constitution can be “Living”. If someone else has an argument they think could hold more than a thimble of water to argue such a case, I’d like to hear it. Until then, I think I’ll stick with the wisdom of what has come before, because it has the tide of history to prove how amazingly it has worked compared to the few decades of utter failure by those who have been in opposition to it.
Jonah Goldberg has a masterful editorial this week on the hypocrisy of those wanting a “Living Constitution” versus those who would rather we stick to the easily identified original intent. He starts it with a quote from Slate’s legal correspondent, Dahlia Lithwick.
"We do not insist that our medicine, our technology, or even our entertainment, all remain in an obsolete state; why would we demand that the law be given such treatment? It seems absurd to suggest that we can change the speed limit to reflect improved technology but we cannot interpret the Constitution to reflect improvements in society."
Her assessment is interesting not just because of its towering arrogance, which Goldberg quite pithily takes apart, but because it provides an interesting technical view of how the Left justifies the whole concept of a “Living Constitution”. To the Left, in general, it really is no different than a radio or television and no more immutable than an encyclopedia or dictionary. After all, even Webster’s updates for slang.
And I’m not sure if she recalls law school, but the law has in fact changed quite significantly over 200 years within the framework of the Constitution. Federal laws have worked well within that frame and in the last sixty years well without it as well. The US legal code would make the librarians at Alexandria think about cutting back a little. The Constitution is not just some “law” that needs to be kept mutable to be saved from obsolescence. The Constitution was also not designed as a socially mutable document that would change with the hemlines for a given year.
The Constitution narrowly defines the powers and duties delegated to the federal government by the preexisting state governments. As an afterthought, and because there were paranoids among the Conventionalists who thought that some day people in the federal government might try and extend their powers over what were seen as inalienable rights. Now, not only are those not sacred and immune from attempts by “social engineers” to erase or modify them, but the Constitution is being turned into a social experiment by figures on the Left to give some semblance of legitimacy to their otherwise illegitimate programs.
If the Constitution is not susceptible to the whims of demagogues and changing cultural trends, then the limits on power it imposes and the freedoms it enumerates can be eternal. This was the intention of the Founders, plain and simple. If something did occur that required a significant revision of the language of the Constitution (such as the question of slavery), that mechanism was also provided in the form of Amendments. That worked for over 150 years until socialists just started bypassing it, but they have never been able to claim that they have a real mandate to do what they do, because there is no real Constitutional basis for it.
But if it is susceptible to such whims of social engineering as the Left has tried to employ and if it can be made to see whatever those in power want it to say merely with a claim of “changing with society” or the needs of some majority or minority, then it might as well not exist. It might as well be written in pencil and drafted by a 2nd grader for all the legitimacy it would have as the foundation for all our laws, and by consequence all our laws and government would be equally as illegitimate. They might as well resurrect the concept of “Divine Right” (no pun intended) to explain why we must no longer eat meat or why we must no longer be able to defend ourselves or basically act like Parisians.
With that in mind, I can see no realistic or effective argument to explain why or how the Constitution can be “Living”. If someone else has an argument they think could hold more than a thimble of water to argue such a case, I’d like to hear it. Until then, I think I’ll stick with the wisdom of what has come before, because it has the tide of history to prove how amazingly it has worked compared to the few decades of utter failure by those who have been in opposition to it.
posted by Rob Beck | 10:14 PM
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