Our Savaged "Living" Constitution

Published: 1994-09-01

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Joseph Sobran is a nationally-syndicated columnist, author and lecturer. He is a former senior editor of National Review, and currently Washington, DC, correspondent for The Wanderer and the Rothbard-Rockwell Report. This essay first appeared in Capitol Hill Voice, Jan.-Feb. 1994.

Most Americans are taught, and assume, that we still live under the Constitution of the United States. We are even told that the Constitution improves with age – that it's a "living document" whose full potential has only been realized in modern times thanks to the interpretations of the Supreme Court.

Thanks to the Court, we now know that the First amendment protects obscenity, but forbids prayer in public schools. We know – again thanks to the Court – that we have a constitutional right to "privacy," which means that a woman may have her child aborted without consulting or informing the father. We know that the abortion laws of all 50 states, even the most permissive, had been in violation of the Constitution.

We know, in short, that many of our moral and religious traditions are "unconstitutional" – in the eyes of our ruling elite. It seems to make no difference that most of us had no inkling that we were acting unconstitutionally until the modern Court announced the fact to us.

On the other hand, the court finds nothing unconstitutional about the countless new powers constantly claimed by the federal government, even when these clash directly with the Bill of Rights. The Court upholds federal gun control laws, even though the Second Amendment says plainly "the right of the people to keep and bear arms shall not be infringed."

So the Court can create "rights" that are nowhere mentioned or implied by the Constitution; and it may set aside rights that are explicitly listed in the Constitution.

It is all, of course, nonsense.

This is what the idea of a "living document" comes down to: The Court is not bound by the plain meaning of the words it interprets. It may assign unsuspected new meanings to those words, disregarding history, tradition, and the dictionary.

The Constitution was not "dead" before the modern Court went to work on it. It had been amended five times in the two decades before Franklin Roosevelt sought to change it by stealth during the New Deal. That was the fastest rate of amendment since the adoption of the Bill of Rights.

Far from being dead, the Constitution proved capable of being changed by the people themselves through the amending process the Constitution provides for in Article V. It didn't have to be subtly twisted by clever jurists bent on reading their pet notions into it.

There is no need to rehearse all the details of the great change that has occurred since Roosevelt filled the Court with his cronies. In fact, many learned constitutional scholars know the details without seeing the pattern those details form: they don't grasp that the Constitution has been stood on its head.

The clear purpose of the Constitution is to distribute power very carefully. Most powers of government are reserved to the states and the people; this is implicit throughout, but it is affirmed expressly by the Tenth Amendment and is clear from all the ratification debates of 1789. A very few powers, carefully listed and defined, are delegated (key word!) to the federal government. These few powers, in turn, are divided among three branches of government, one of which (Congress) is further divided into two houses.

In granting new powers to the federal govern ment, then, the framers of the Constitution were anxious to prevent power from being centralized, or (in their fearful word) "consolidated." The idea of trusting any single man, group, or branch of govern ment with all power was the very opposite of what they had in mind.

It is worth noting that a close modern synonym of the word "consolidated" is "fascist." Centralization of power is the fascist – as well as the "socialist and communist" ideal. And elements of all three systems, which were sweeping Europe and Russia, helped inspire and form the New America of the New Deal.

The champions of consolidated government knew that the old Constitution was the great obstacle to their designs. They wanted to preserve the outward forms of constitutional government while emptying those forms of content, because an openly revolutionary government could not command the allegiance of the American people. So they developed the strange idea of a "living" or "evolving" Constitution that somehow became the opposite of itself, and actually reversed its meaning with the passage of time.

Today the plan and original meaning of the Constitution exists only on paper, and in the minds of a shrinking number of Americans who still understand the heritage they have been robbed of. We live in what might be called post-constitutional America, where the arbitrary and purposeful misinterpretation of the Constitution has turned ours into a government of men, not laws. The doctrine of the "living document" really makes the Constitution a dead letter, a law without effect.

Does this sound gloomy? There is no need to despair. By recognizing the idea of a "living document" for the nonsense it is, we can restore the Constitution and reclaim the liberty our ancestors earned for us.

The First World War and American intervention therein marked an ominous turning point in the history of the United States and the world. Unfortunately, there are relatively few persons who recall the days before 1914 ... All kinds of taxes were relatively low. We had only a token national debt ... Inflation was unheard of here ... There was little or no witchhunting and few of the symptoms and operations of the police state which has been developing so rapidly here during the last decade ... Enlightened citizens of the Western world were then filled with buoyant hope for a bright future of humanity ... People were confident that the amazing developments of technology would soon produce abundance, security and leisure for the multitude. In this optimism no item was more potent than the assumption that war was an outmoded nightmare ... The great majority of Americans today have known only a world ravaged by war, depressions, international intrigue and meddling; the encroachments of the police state, vast debts and crushing taxation and the control of public opinion by ruthless propaganda.
—Professor Harry Elmer Barnes (1889-1968). Quoted in: G. Garrett, Burden of Empire, pp. 94-95.

Additional information about this document
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Author(s): Joseph Sobran
Title: Our Savaged "Living" Constitution
Sources: The Journal of Historical Review, vol. 14, no. 5 (September/October 1994), pp. 36f.
Published: 1994-09-01
First posted on CODOH: Dec. 10, 2012, 6 p.m.
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