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The Immutable Nature of the Constitution

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THERE’S A PHILOSOPHY ABOUT THE CONSTITUTION that’s killing it — ironically, by conceiving it as a so-called living thing, subject to reinterpretation by society. In our entire history, the view has been ascendant for only the last 40 years — a “contribution” largely of Earl Warren’s Court. Before that time, judges discerned the meaning of the Constitution from what it says, i.e., from its text. They understood the Constitution to be a legal document. Though not unaware of popular opinion (or even unaffected by it), they necessarily gave primacy to the original intent of the Founders, who wrote the Constitution, which became the supreme law of the land.

Today, instead of garnering enough support from the public to pass laws in accordance with the Constitution — or to amend the Constitution if need be — advocates influence judges. The judges continually revise their views of the Constitution in order to satisfy “the public.” Fixed principles thus no longer guide the High Court’s decisions; rather, a poll of the majority does the trick — for any given subject, at any given time. Understanding political history and the Founders’ views hardly seems relevant anymore. Indeed, Supreme Court Justice Antonin Scalia (a Reagan nominee) rightly observed that the situation “places the meaning of the Bill of Rights in the hands of the very entity against which the Bill of Rights was meant to protect” — namely, a temporal majority as expressed by or through the federal government. Hence, the view of the Constitution as “living” renders the verdict of the American Revolution (or the Civil War — or any verdict) moot, because ultimately you make the Constitution mean anything you want.

One might reflect on the reason the Founders wrote the Constitution down in the first place. After all, the British constitution wasn’t (and still isn’t) written down. One of the biggest problems with the English system addressed by the Constitutional Convention was the fact that the English constitution was not fixed. It operated on common-law assumptions, which enabled it to absorb changing precedent. This “living” approach, over time, gave Parliament its unfettered power by the time of the American Revolution. Every American knows (or ought to know) about the genius of this country’s checks and balances.

The Founders put in place written, fixed checks and balances to prevent unfettered concentrations of power over time. The states were as important in this regard as the three, co-equal branches of national government. How can checks and balances now work, if the fixed meaning of written words is traded for a modern equivalent of common law — i.e., public opinion, informed or otherwise?

The central government was limited by actual design. The limited function at the center was defined by enumerated powers in the Constitution — essentially, a delegation of authority by states and the people to the federal government. In this way, the national government was set up to serve grassroots. Every state already had its bill of rights when the national Bill of Rights (first ten amendments) was adopted. Indeed, the language of the Bill of Rights is entirely negative — precluding the federal government from doing certain things that infringe upon states or the people. In no wise did the Bill of Rights confer power on the federal government to enforce rights it divines 210 years later, through a living reinterpretation! That would be a prescription for unfettered power, and that’s the point Scalia was making — one I hope we all get soon, before it’s too late.

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    Wesley Allen Riddle was awarded his B.S. degree from the United States Military Academy, West Point, and his M.Phil. with Distinction from Oxford University. He currently is professor of history at West Point.