The United States Constitution; “A Living Document?”
The Constitution of the United States stands as a guarantor of liberties and a set of laws that limit the scope and power of our federal government, not a “living document” which is by definition fluid, ever changing and a guarantor of nothing. Our laws and the Constitution as well are changeable. This is a certainty with the change processes being built in word for word and step by step. The will to “interpret” rather than change them, (which requires actual work to make happen) some would argue borders on being defined as traitorous. Officials are elected to preserve this Constitution not weaken, devalue or re-define it. Their oaths once sworn demand it, law and the population should do the same and not offer passion or forgiveness when not honored. Calling the Constitution a living document, by definition is far too variable of a term to be used when describing what is actually the solid base upon which our republic is built.
The Preamble to the Constitution itself, expresses in very plain fashion the strength of thought, the solemnity and the rigidity of the original document. The founding fathers of this Nation did not offer it for interpretation; they offered it as a framing document and an irrevocable base to build upon, not tear down. The Preamble to the Constitution reads; “…and secure the blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” (Morris, Gouverneur and James Madison eds. Web).
Alone, this statement denies all argument that the document is anything short of constant, and meant to guarantee its wording to citizens for perpetuity, not open its application or meaning for variance. Being a document of definition and one meant to hold fast for the length of time our nation is in existence. The use of limitations against it, as well as the interpretation of any statement within it becomes null and void at best. Using a term like “living document” to describe the U.S. Constitution is a shaded attempt at making what is law more “interpretive”, weakening its standards and violating personal freedoms and privileges held by citizens while expanding the powers our government holds.
The term law in and of itself brings to mind a fixed set of rules and penalties, that once set down is required to be applied evenly across the board. This would not be something open for application at varying degrees according to situation or individual citizens, nor to various interpretations by circumstances and the like. Benjamin Franklin saw that over time, our Constitution and laws therein, “with all its faults” could be disabled and even dismantled by interpretation and circumvention. Franklin, when talking about the Constitution said it is, “…likely to be well administered for a course of years, and can only end in Despotism as other forms have done before it, when the people shall become so corrupted as to need despotic government…” (Bailyn, eds. 3).
The point being made here is that interpretation, and not equal application of law would over time allow despots to define, and redefine what the intent of a law was, without going through the actual steps to change said law. This way of approach would only weaken the Constitution over time, make a population more dependent upon the governing body and at end leave that population in servitude in one form or another. By nearly any standard the governing body that would allow this to happen would be held up as an example of treason in the eyes of the framers and even men of republics that have existed previously to it as well. Rome was possibly the most famous working example of a republic previously. Cicero, being one of its greatest voices and thinkers offered this in a speech when discussing laws being redefined by circumstance and laws being created by “decree” at the time, similar to modern day “Executive Orders”;
“A nation can survive its fools, and even the ambitious. But it cannot survive treason from within. An enemy at the gates is less formidable, for he is known and carries his banner openly. But the traitor moves amongst those within the gate freely, his sly whispers rustling through…all the alleys, heard in the very halls of government itself. For the traitor appears not a traitor; he speaks in accents familiar to his victims, and he wears their face and their arguments, he appeals to the baseness that lies deep in the hearts of all men. He rots the soul of a nation, he works secretly and unknown in the night to undermine the pillars of the city, he infects the body politic so that it can no longer resist. A murderer is less to fear. The traitor is the plague.” – Marcus Tullius Cicero (106 – 43 B.C.)
As many know, the Roman republic fell prey to internal issues and political intrigues that later made it an Imperial entity with a Senate and political system which were more window dressing than operational controls or power holding entities. Cicero foresaw the effects of many changes and warned of them to never allow these.
The Constitution is our most conservative legal document, and the Bill of Rights stands as its more moderate partner. It is extremely limiting in granting powers to the federal branches of government and was written this way for a reason. The founders did not wish for an expansive federal overreach into citizens’ lives, homes, religions and liberties. James Madison, (our fourth President and a strident anti-federalist) referred to the powers delegated to the federal government “few and defined” and those of the states “numerous and indefinite” (McClanahan 79). Some historians argue this man to be “The Father of the Constitution”.
By every standard his opinion and judgment should stand in honored reverence. Madison saw the Constitution as a conservative limitation to federal powers fully explained and unchangeable without a specific amendment made in the form and by the methods defined within the document. To open, pass through legislature, or enforce laws through simple interpretation of wording contained therein would have been something Madison would have found as reprehensible if not specifically illegal.
By having change procedures built into the Constitution and their being disregarded or at minimum side stepped at points, all legislation based there on is un-constitutional simply by its existence and also therefore illegal: The Commerce Clause of the Constitution was placed there to avoid a “Balkanizing” of the nation by granting Congress the power to prevent states from enacting trade barriers and placing the federal government in charge of currency as well as international trade regulation. James Madison expected the law to remain and be permanent due to the fact that the Constitution was written as it was. In January of 1788 he wrote; “”Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act.
In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution.” (Hamilton, Madison, Jay 192). The country functioned in that way up until 1938 in actuality. The New Deal era of the Roosevelt administration changed this, but only by use of the “living document” argument and Jurist appointments which made it possible. Can you imagine big business lobbying the federal government to pass laws that force citizens to buy their products? Though this may seem impossible as well as illegal constitutionally, it is currently taking place unfortunately. Simply opening a newspaper recently would produce a flood of examples here. Since the year 1988 in particular, Executive Orders and laws with attached legislation have done more damage than all other pieces of legislation and orders combined during the entire 200 years previous.
The growth of our government has bloated our debt, brought our government into our homes and forced dependency upon the people. These were not aims or goals of the Constitution even with change being placed in as an option for future generations. Freedoms and personal liberties, once guaranteed have been eroded over time by side stepping of the Amendment process that is legally necessary.
Amendments; 2, 4, 9, 10 and others have fallen victim to outside legislation or executive orders either weakening or at points even disregarding them over time .Judicial activists and the use of the “living document” argument have permitted this by interpretation, and by sheer arrogance in the face of actual law. An example recently would be the arguments on the trials and holding of foreign nationals at the military base located beside Guantanamo Bay in Cuba. The Constitution does not apply to anyone that is not a citizen of the United States, nor would it apply outside of U.S. territories or override military codes of justice when dealing with foreign fighters of any kind. Recent arguments have included writings on different decisions to enable further interpretation for use against this fact like this one; “Chief Justice Warren E. Burger observed in 1980, on the importance of the Constitution’s protection of public access to the courts: “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” (Schulz Web).
This comes from an argument being offered currently that any or all proceedings in Cuba’s U.S. occupied military facility should be open to public view. The Constitution does not however protect or hold power outside U.S. borders for these prisoners, nor does it apply to these foreign nationals in any real or tangible ways. Military codes of justice, treaties with other nations and rules of war may hold bearing at points, but not our framing documents. Again we go to the interpretations of a document and the tearing at its value in attempting to apply it outside of its parameters. One of the greatest things about being a citizen of the United States is that it does apply and protect its people. The reality is also that if you are not a citizen, it does not and should not apply. Only by the interpretation and side stepping of true legality can personas non gratis claim rights, liberties and privileges provided by our founders and paid for with American blood, treasure, intellect and faith.
The Constitution of the United States is law and to use a term like “living document” to describe it simply reduces its strength. Interpretation and redefinition at every opportunity only blurs its meaning, its true value and its individual grace which makes the United States shine as a beacon of liberty and truth to the world at large. Conservative is what the Constitution is, solid and a guarantor of liberty. “conservatives have largely coalesced around the school of thought known as originalism, which says that the Constitution should be read according to its original public meaning, “progressives have floundered both in developing any sort of consensus as to what they want from the courts and in describing their expectations to the public at large.” (Root Web).
The United States should set example and help others to emulate its poise, not make interpretations that only leave populations guessing what the progressive left will limit by order, legislate from outside avenue or simply limit with or without Constitutional support in the nation. This the antithesis of setting a standard for the world in defending liberties and personal freedom, as is forcing its interpretations or values off U.S. shores. Only a nation of strength with rule of law and a base in faith, will and industriousness can impress and lead the world. This cannot be done with an ever changing, variable application set of laws without predictable structure and effect over time. There must be a solid base, and this was granted to these United States in the form of the Constitution in 1787.