The “Living” Constitution

This was originally posted on Live Oaks on March 22, 2010. Comments have not been migrated.

A few weeks ago a commenter argued that the Constitution is a “living” document. According to Wikipedia:

The Living Constitution is a concept in American constitutional interpretation which claims that the Constitution has a dynamic meaning. The idea is associated with views that contemporaneous society should be taken into account when interpreting key constitutional phrases. [links removed]

In other words, the Constitution does not have a specific meaning that is applicable across time. It simply provides some general guidelines that we should interpret according to the latest opinion poll. Which means, there are no principles within the Constitution. Which means, the Constitution is nothing more than a piece of paper. “Living” Constitution is in fact, an anti-concept:

An anti-concept is an unnecessary and rationally unusable term designed to replace and obliterate some legitimate concept. The use of anti-concepts gives the listeners a sense of approximate understanding. But in the realm of cognition, nothing is as bad as the approximate . . . .

The idea of a “living” Constitution is intended to destroy the Constitution. It is intended to remove the constraints on government, constraints that are enumerated in that document. According to the “living” Constitution doctrine, limitations on government’s powers–such as prohibitions on restricting speech–are subject to the opinions of the day. If the people want health care, or income redistribution, or censorship, the Constitution should not get in their way.

The Founders were well aware of the dangers of democracy–unlimited majority rule. They understood that the passions of the majority are as dangerous as the whims of a king. They sought to protect individual rights from a tyranny of the masses as well as a tyranny of one. They designed a government whose powers are limited, no matter who is in charge, no matter the fleeting desires of the citizenry.

The advocates of a “living” Constitution seek to unleash any such limitations on government. They seek to give “the people” the power to dictate how individuals may act.

The Constitution is a document of life. The “living” Constitution theory is not.