By: Richard A. Correa Sr. SGT RIARNG, Retired
One of the most important things we want is to destroy the doctrine that the US Constitution is a ‘living document’. This doctrine was established by the early progressive movement in the US. Like Dracula, feeding on the life blood of a person, this doctrine sucks the strength of the constitutional limitations on government out of the constitution and is draining the life from the republic. And like dealing with any other vampire we must drive a stake through its’ heart and expose it to the light of day, destroying it.
The early progressives, like Teddy Roosevelt, wanted to do much more to change the country when they found themselves in power in our government but were constrained by constitutional limitations. Though they could argue for change and use the amendment process to change the constitution they felt they could not get the public to agree to the changes they wanted. At that time in our history we were better educated in the constitution and our civic duties than we are today. It would be very difficult for the progressives to overcome this and it was cumbersome and slow. They needed a way to circumvent the limitations on governmental power placed by the US Constitution, and in the ‘living constitution’ doctrine they found it.
For those unfamiliar with the concept it is described in Wikipedia as follows:
“The Living Constitution is a concept in American constitutional interpretation which claims that the Constitution has a dynamic meaning. The idea is associated with views that contemporaneous society should be taken into account when interpreting key constitutional phrases.
While the arguments for the Living Constitution vary, they can generally be broken into two categories. First, the pragmatist view contends that interpreting the Constitution in accordance with long outdated views is often unacceptable as a policy matter, and thus that an evolving interpretation is necessary. The second, relating to intent, contends that the constitutional framers specifically wrote the Constitution in broad and flexible terms to create such a dynamic, “living” document. Opponents of the idea often argue that the Constitution should be changed through the amendment process, and that the theory can be used by judges to inject their personal values into constitutional interpretation.”
I’m sure that most of you will agree that, as described in the last sentence of the above, the opponents of this doctrine are correct, based on the federal court decisions of the last 100 years.
Now academia has gone to great lengths to support this doctrine since it was first proposed in 1937 in the book ‘The Living Constitution’ by Professor Howard McBain.. Many noted Americans like Oliver Wendell Holmes Jr., Louis D. Brandeis, and Woodrow Wilson have supported the concept. Many authors have written scholarly tomes on the subject praising our founders in their brilliance at creating such a document. And at the same time, these same authors were telling progressive political leaders how to further undermine the republic.
Many of you may remember, as I do, our teachers telling us that the constitution was a living document, made to change with the times thus indoctrinating us into believing the government can do anything it wants.
In my not so humble opinion the answer to all of their arguments in favor of this doctrine, and the stake to be driven through it’s heart, is found in Article VI, paragraph 2 of the US Constitution which states:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.”
My argument is simply the US Constitution is the supreme law of the land and a law has to say what it means and mean what it says. This does not allow for ‘changing interpretations based on the times and societal needs’.
To illustrate, let’s take a look at the simple law that requires us to stop at a stop sign when we are driving. We all know that if we are caught by a police officer driving through instead of stopping we will be ticketed and fined, in other words, punished for breaking the law. If we do it enough times we will lose our license to drive because we broke the law. The law says what it means and means what it says.
Now, let us make our stop sign law a ‘living document’. What does that mean? Does it mean that on Monday you must stop but on Tuesday maybe you should stop but you really don’t have to? What about Wednesday? Can you zip on through if your name starts with an R but you have to stop if your name starts with a P? What about Thursday, Friday, next week, next year or the next century? How can you punish anyone if you do not know how ‘society’ will interpret the law from one moment to the next? Obviously, this law does not say what it means and mean what it says.
To further the argument, if the constitution is a ‘living document’ then any law made under it must be ‘living’ as well. This means the entire US code is a living document, and means something different from one moment to the next, and is unenforceable. If we follow this argument one could say that every person that was convicted in a federal court, and is in a federal prison would have to be released if we all work up one morning and decided that our ‘living’ constitution, and the code of law created under it, had changed meaning.
No society can exist under such a system. Therefore, the ‘living Constitution’ doctrine is a fallacious argument and with out merit. So let us finish driving this stake through it’s heart and drag it into the light of truth so it will turn into the dust it truly is and be blown away by the winds of change.