‘Living Constitution’ Is A Sick Concept

When it suits them, liberals embrace the U.S. Constitution with astounding gusto like when they seek to protect the republic from the dangers of posting the Ten Commandments in a public courthouse or some other grievous threat to American liberty.

Modern liberals may find the Constitution handy to have around when arguing with a member of the religious right, but it is not a document they take too seriously. It’s pretty hard to square the leftist penchant for centralized government with the Constitution’s 10th Amendment, which vests most powers in the hands of the people or the states. Or to argue for gun bans when the Constitution - and the clear intent of its drafters - gives individuals the right to bear arms.

Liberals have created a clever way to get around the obvious disconnect between their statist ideology and constitutional decrees. They say the Constitution is a “living and breathing” document that was intended to grow and adapt to America’s changing circumstances.

The most influential proponent of that belief, former Supreme Court Justice William Brennan, received grandiose eulogies by liberals after his recent death precisely because his judicial reasoning was unfazed by what the Constitution actually says.

Syndicated columnist Nat Hentoff, waxing poetic about Brennan’s great contributions to America in a column, succinctly captured the justice’s constitutional philosophy: “His conviction remained that the living, evolving Constitution - not frozen in time more than 200 years ago - will surely rejuvenate liberty in the decades ahead.”

There is some truth in this suggestion. Times do change, and no less an authority than Thomas Jefferson agreed that our government must change with them. But while the Constitution was never meant to be frozen in time, neither was it designed to be twisted to suit the fancy of unelected judges or to easily change to fit the fads of any day.

The founders created a nifty way to let the Constitution live and breathe: It’s called the amendment process, whereby Congress must pass an amendment by a two-thirds majority and then send it to the states for ratification by three-quarters of the legislatures. As an alternative, if two-thirds of the state legislatures petition Congress for an amendment, Congress must call a convention to draft one.

But amending the Constitution is a time-consuming process that requires a broad expression of the popular will. Since most social engineering schemes - racial quotas, busing, abortion on demand - have been anything but popular, liberals rely on like-minded judges who impose their will by dictate, then dress up their rulings in constitutional-sounding verbiage.

Hence, activist judges routinely discover new rights in constitutional penumbras (in gray areas, or between the lines). They hide behind the “philosophy” of a living and breathing Constitution, but in reality, they are petty dictators who would rather impose their ideas on the nation than wrestle with the language of the Constitution and the original intent of our Founding Fathers.

A constitution is, according to Webster’s dictionary, a “document or set of documents in which … fundamental laws or principles of government … are written down.” If a constitution can be changed by whim, then, by definition, it is simply not a constitution.

But to Brennan (as quoted by Hentoff), our Constitution must be in constant flux because America has yet to become an egalitarian utopia: “We do not yet have justice, equal and practical, for the poor, for the members of minority groups, for the criminally accused, for the displaced persons of the technological revolution, for alienated youth, for the urban masses …. Ugly inequities continue to mar the face of our nation. We are surely nearer the beginning than the end of the struggle.”

Apparently, James Madison, Gouverneur Morris and Co. weren’t as clever as Brennan would have liked them to be. The framers sought to protect such trivialities as freedom of speech, religion and self-defense; they offered no national government solution to alienated youth and displaced workers. Had they been more enlightened, perhaps the founders would have added constitutional clauses that declare:

The state “actively guides the national capitalists in carrying out activities beneficial to national welfare and the people’s livelihood.”

Women have “equal rights with men in all spheres of political, economic, cultural, social and domestic life. For equal work, women enjoy equal pay with men.”

“Citizens … have the right to maintenance in old age and also in case of sickness or disability (and) … the right to education.”

These are excerpts from some communist constitutions (North Vietnam, the Soviet Union and Albania) - and they reflect sentiments that would be far more appealing to today’s liberals than the ideas so eloquently presented in, say, the U.S. Constitution’s Second and 10th amendments.

Perhaps it’s time to admit the obvious: Our original Constitution is gravely ill, and the “living and breathing” one that has replaced it has little to say about the liberties our founders worked so hard to preserve. That may be a cause for celebration to liberals, but it should be a source of anguish to the rest of us.

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