On September 17th, 1787, the delegates to the Constitutional Convention signed the U.S. Constitution, forever changing the shape of world politics.
The Constitution was brilliant in its simplicity. For perhaps the first time in human history, a major government was formed under the principle of preexisting human rights. Rather than defining the rights of the people and reserving all other power to the government, the Constitution did the opposite: it enumerated the powers of the government and reserved all other rights to the people.
In recent decades that document, which defines the United States of America, has come under unrelenting attack by those who find it an encumbrance to their political aims. Politicians, scholars, and pundits refer to the Constitution as a “living document.” Ironically, the Constitution was conceived and born a living document. It is they who use that term who have killed it.
Our founding fathers recognized that conditions in American society would change, and they crafted the Constitution so that it, too, could be changed in accordance with the will of the people. To imbue the federal government with powers beyond those originally defined, the Constitution could be amended, requiring a two-thirds vote of both chambers of Congress and ratification by three-fourths of the States. Thus, federal power is expanded by the consent of the governed. Does this process make it easy for the government to acquire more power? No. And that was exactly the point.
Some feared even that process. They worried that the government could, in the future, convince the American people to give up their sacred rights. Led by Thomas Jefferson, these founders insisted that certain precious liberties be set aside in a “Bill of Rights” that would exempt those rights from ever being amended out of the Constitution. In other words, the American people could never abrogate their right to freedom of speech, religious expression, to keep and bear arms, etc. That was the original definition of a “Constitutionally protected right”: not a right that is granted to us by the Constitution, but rather a pre-existing right that could never be taken away by the Constitution. Hence the use of terms like, “Congress shall make no law…” or “the right of the people shall not be infringed.”
The Federalists, led by Alexander Hamilton, disagreed. They argued that those sacred rights could never be taken away anyway, since the Constitution did not grant the government the power to do so, and that the American people would never be duped into allowing such amendments. In fact, Hamilton argued that adding a “Bill of Rights” would endanger liberty–that future governments would claim that the Bill defined our rights, and that anything that wasn’t included was fair game. He feared a future where the government passed any law they saw fit unless the Bill of Rights specifically and unequivocally “protected” against it. As he argued in the Federalist Papers (#84): “it is evident that [the Bill of Rights] would furnish, to men disposed to usurp, a plausible pretence for claiming that power.”
And even the Bill of Rights no longer defines, unequivocally, our “rights.” The government has decided (and the Supreme Court concurs) that it can decide when the Bill of Rights itself applies. So we have an American society where certain types of material cannot be read in our own homes, where the right to defend ourselves is assailed based on a comma missing from a draft of the Constitution, and where a citizen’s home and belongings can be seized and sold without the owner ever being charged with, much less convicted of, a crime.
The Supreme Court was to be the arbiter, the last bastion of protection for the American people from government usurpation of power. And this is the Constitution’s great failing. The Court members are nominated and confirmed by the very officials who take such power as their own. And thus we have Courts that allow laws to stand because they are “good ideas,” regardless of the non-existence of the constitutional authority to pass them. And they justify this murdering of our constitutional process with the euphemism, “living document.” Our latest Supreme Court nominee, Elena Kagan, said herself: “you should not want me to act in any way on the basis of such a belief [that individual rights pre-exist the Constitution].” In other words, the government does not get its power from the inalienable rights of the people; the people are granted their rights by those who rule over them.
Life implies change. Every plant, animal, microbe can adapt to its environment. Evolution is the defining element of any living object. Including the U.S. Constitution.
So what has happened to our “living document”? In recent decades the federal government, with the collusion of the Supreme Court, have bypassed the constitutional process of government. In the past sixty years, only one significant change to the Constitution was passed–in 1971, lowering the voting age to 18. None of the expansions of federal power in the last century has been through the amendment process–requiring the consent of the governed–created by our founders.
How would such a process work in practice? After all, the federal government needs new authority to deal with modern situations.
Recently, the government has dictated what kind of light bulb we use to read to our children, what kind of car we drive, what type of shower head we may bathe under, even what type of toilet we sit on. Instead, they could have followed the law and asked us to amend the Constitution as follows:
“Congress shall make such laws as necessary to protect the environment.”
This amendment would be debated in the House of Representatives and the Senate, between the elected representatives of both parties, in full public view, and a compromise worked out. This compromise amendment would then be sent to the fifty States who would vote for ratification, either through the elected State representatives, or by the direct vote of the people. All sides would be heard, debate would rage (as it should in a free society), and the people would decide.
In short, the feds would come to “we the people,” make their case, and ask, “May we have this additional power over you?” And we would decide. That is the meaning of consent of the governed, not “You elected me, so you gave me your consent to do whatever the hell I want, regardless what that moth-eaten old document says.”
The amendment process as defined by our Constitution has been utterly ignored for decades, and most often by those who intone the words “living document.” But by refusing to follow the rules set forth in that document, which allow it to evolve for our changing society, they have in fact stolen its life. The Constitution of the United States now lies in state, dead and unchanging, while the carrion fowl in power invoke its name while picking at its flesh.
So let us take a moment of silence to pay respect to the greatest legal document ever written, taken from us long before its time.