Thursday, January 9, 2014

The Constitution is Not a Living Document

The United States Constitution is sometime referred to a social contract--it is the basic compact between the States to form a national government. However, with the coming of the Progressive Era, a theory arose that suggested that the Constitution should be read as a dynamic document, reinterpreted to fit the time and needs--i.e., a living document.

This is an anomalous position given that such "dynamic" interpretation is not afforded to other legal documents. For instance, private contracts are interpreted in such a manner as to discover and follow the intent of the parties forming the document based on the objective language of the contract. See, e.g. Baldwin v. Univ. of Pittsburgh Medical Ctr., 636 F.3d 69, 75 (3rd Cir. 2011). Similarly, when interpreting a statute, courts assume that Congress intended the ordinary meaning of the words used; but if the language is unclear or ambiguous, the courts look to determine Congress' intent. Consolidated Bank, N.A. v. U.S. Dept. of Treasury, 118 F.3d 1461, 1463-64 (1997). There is no expressed theory that contracts or statutes should "evolve" over time as needed, and we would be outraged if courts were to adopt such standards.

We should be similarly outraged with courts having done the same to our Constitution. If the Constitution is not adequate to its task--either because times and social mores have changed, or a provision is faulty, or some new right or restriction needs to be added--it provides an amendment mechanism. It is only because Progressives wanted the government to act ultra virus to the Constitution, but they did not believe that they could succeed in obtaining amendments, that it became fashionable to think of the Constitution as flexible and changing. This is political and legal chicanery to bypass the will of the People--an insult to the document and a breach of the contract which the Constitution represents.

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