Jonah Goldberg wisely argues that the notion of a 'living' Constitution -- interpreted vaguely by judges to reflect the whims of passing generations --is dangerous to liberty. We small government types prefer our constitutions 'dead' -- fixed in stone, interpreted literally, and changed only through the amendment process:
The case for dead constitutions is simple. They bind us to a set of rules for everybody. Recall the recent debate about the filibuster. The most powerful argument the Democrats could muster was that if you get rid of the traditional right of the minority in the Senate to bollix up the works, the Democrats will deny that right to Republicans the next time they’re in the majority (shudder).
The Constitution works on a similar principle, as does the rule of law. Political scientists call this “precommitment.” Having a set of rules with a fixed (i.e., , unliving, etc.) meaning ensures that future generations will be protected from judges or politicians who’d like to rule arbitrarily. This is what Chesterton was getting at when he called tradition “democracy for the .” We all like to believe that we have some say about what this country will be like for our children and grandchildren. A “living Constitution” denies us our voice in this regard because it basically holds that whatever decisions we make — including the 13th, 14th, and 15th Amendments — can be thrown out by any five dyspeptic justices on the Supreme Court. In other words, the justices who claim the Constitution is a wild card didn’t take their oath to uphold and defend the Constitution in good faith because they couldn’t know what they were swearing to. [emphasis added]
Goldberg makes a good case that the viable status of the Constitution isn't a liberal or conservative issue -- it's a pro-liberty issue. And as we can see from Justice Scalia's recent Raisch opinion, conservatives has no particular interest in defending the Constitution from penumbra searches, either.
Wednesday, June 29, 2005
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5 comments:
You've got my vote for a dead constitution.
The Constitution doesn't give us our rights. We are endowed with them by our Creator. The Constitution imposes limits on government, and grants limited and enumerated powers to the government.
To say "the Constitution is a living, breathing document" is inane. Literally, the statement is meaningless euphemism. Accurately, it means "the Constitution says whatever a majority of justices want it to say." The existence of so much unchecked power is unwise. If the laws come to mean whatever the judges say, we're no longer ruled by laws, but by men.
Cole, the changes in the South came about because the 14th and 15th amendments were finally enforced. They were not reinterpreted by the Justices, but the original intent was applied.
If you want to change the Constitution, it is simple -- just pass an amendment.
If we accept that the Constitution should be 'living', then a simple majority of five justices can simply vote to take away your right to property, speech, a speedy trial, etc. If we accept that the Constitution should be 'dead', then the Justices are bound to it, and neither they or Congress can conveniently vote away our freedom and still pass constitutional muster.
Cole;
So which is it? The Constitution as written acts as a check on the court? Or the interpretation of the justices determines what the Constitution says?
The court for the last sixty years has been partially a force for positive change that might not have happened as quickly otherwise. That progress has come at the price of redefining "Constitution" as "the opinion of the current majority of Justices." We'll see what the long-term consequences of that will be.
Tom Harrison
I see your point, Cole. However, I don't think that the use of federal force to provide for interracial marriage is sufficient motivation to place our liberty in danger by allowing the courts simply because they choose to intepret a freedom out of existence, e.g property.
Laws against interracial marriage or sodomy, as detestable as they are, can be resolved at the state level. And if they can't in a few states, let's pass a constitutional amendment to permit these practices. I'd support it.
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