The Constitution — Living or Lasting?
Many progressive legal scholars today preach the theory of a “Living Constitution.” They argue that the document setting up the structure and powers of our government should evolve to meet the changing demands of society. Instead, the Constitution is a lasting document possessing enduring meaning. The “Lasting Constitution” remains true to our nation’s founding principles and is the best mode of preserving our liberty.
The origin of the Constitution’s function stems from the principles the Founders outlined in the Declaration of Independence. Its author, Thomas Jefferson, articulated what the Founders considered to be a just government. Jefferson articulated two premises based in natural law.
The first of these “self-evident” truths are that all men are created equal. The word “equal” does not mean every person possesses equivalent material wealth or natural ability. Rather, it simply means no person is born to rule or to be ruled. As Jefferson himself put it “[T]he mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them. “
The second premise is that all men are entitled to certain rights. These rights are inherent to man’s nature and exist independent of government. They include the rights to life, liberty, and the pursuit of happiness.
After establishing these premises, Jefferson drew two conclusions that logically follow from them. First, since all men are created equal with no individual born with a divine right to rule, legitimate government must be derived from the consent of the governed. Second, since rights come from nature and not from government, the government properly functions when it secures man’s natural rights.
The Founders decided to declare independence from Great Britain and form their own nation because the British government violated this natural law, which precedes all man-made laws. Since natural law exists inherently in human nature and is unchanging, the rights of man expressed in the Declaration endure for eternity.
When drafting the US Constitution, the Founders sought to create a government that conformed to the principles articulated in the Declaration. In order to establish a government securing man’s natural rights, they formally set up a government with limited power. They incorporated structural elements such as the separation of powers, checks and balances and federalism into the Constitution as a way to safeguard liberty. Thus, the Founders intended its meaning to endure because they designed it to create a government compatible with the unchanging natural law expressed in the Declaration.
The “Living Constitution” theory flies in the face of natural law. It argues that enduring self-evident truths do not exist. Instead, as the needs of society change so should the meaning of the Constitution. In a 1912 campaign speech Woodrow Wilson, a self-proclaimed progressive, advocated for a constitutional interpretation that evolved with the times. He said, “Living political constitutions must be Darwinian in structure and practice. Society is a living organism, and must obey the laws of life, not of mechanics; it must develop.”
According to Wilson, in order to grant the government enough power to play a larger role in citizen’s lives the interpretation of the Constitution needed to drastically change. Yet the genius of the Founders lay in Article V of the Constitution which allowed for it to be amended when necessary, albeit through a slow and prudential process. The Founders understood if government could always change the rules at any time on any whim there would be no consistency from one generation to the next.
Those who believe in a judicial activist theory might ask themselves a question – if the law can change to meet the ‘living and breathing’ standards of the time to provide exponential subjective rights wherever and whenever, what is preventing the next generation from again altering the previous decision based on the whims of the present period?
This is why conservative jurists utilize the concept of Originalism. Originalism is the concept that judges should base their decisions on the actual text of the Constitution and intent of the law. Judges should err on the side of restraint and defer to the people’s elected representatives when presented with issues not addressed in current law. This would guarantee a check on the actual elected branch of government responsible for legislation and whom the voters could hold accountable.
Progressive jurists say that Originalists are simply resistant to progress and new ideas. This is simply false. Those who believe in a “Lasting Constitution” ascribe to a legal framework that allows for prudent change when truly necessary. Although the world today is different from the time of the founding, our First Principles remain constant. Therefore the “Lasting Constitution” allows the Constitution to live from one generation to the next.