There is a lot of talk on these forums and elsewhere about constitutionality, as if this were the decisive test a proposed piece of legislation must pass in order to be deemed acceptable.

I reject this entire philosophy. I have nothing against the Constitution, but I from everything I have read from the founding fathers, who were revolutionaries, lets not forget, the living are not to be ruled by the dead. Thomas Jefferson went so far as to suggest that we needed a fresh revolution every 20 years or so.

Yes, there is an amendment process for changing the constitution. The constitution was also written when the pace of life was arguably slower than it is today in our globalized economy, where the entire world is integrated to such a degree that what happens in China or Russia tomorrow has an immediate impact on what happens here.

I don't need a constitution to tell me that I have a right to bear arms. It is one of those rights that are, as our declaration of independence says, simply "self-evident." I have a right to defend my life. If I don't have that right then I live under an arbitrary power, tyranny no matter how you color it.

Correct me if I'm wrong, but we obey a set of rules that are more eternally significant than the US constitution. We agree with the US constitution insofar as it defends and upholds some of these higher moral laws, but we have no obligation to obey an unjust law just because it was ratified. I am sick to death of the phrase "we are nation of laws, not men" - this is an abrogation of reason.

Our constitution needs to be living because WE ARE LIVING, and traditionalists and conservatives need to stop acting as if the real problem is that the constitution is ignored. There IS a definite philosophy at work in left-wing "judicial activism" - the philosophy of materialism, secularism, etc. They aren't materialists and atheists BECAUSE they reject constitutional literalism, but rather they reject constitutional literalism because they are atheists and materialists.

THE SAME goes for this corrupt den of neo-cons which has rode roughshod over the constitution and the separation of powers for the last eight years. They too have an underlying philosophy of nationalism and imperialism that they too use to justify ripping up the constitution, saying it is for our "security" and part of the "war on terror", and forgetting Franklin who said that those who would trade their liberty for security deserve neither.

Our modern world, in other words, is a world of conflicting ideologies that go beyond and have little to do with the scope of the concerns of the founding fathers, at least in the details. In fact even issues that the founders WERE confronted with, such as slavery, could not be settled during the ratification debates - their failures made the Civil War all but inevitable. There are clear limits to what a constitution can and cannot do, and that is why constitutional "strict constructionists" appear silly to me. Strict constitutionalism supported slavery - higher moral values, Christian values, animated the abolitionists. Southerners appealed to the Constitution while abolitionists appealed to the Declaration of Independence and "all men are created equal." Lets never lose sight of that.

Today, BOTH right and left are animated by different concerns, different philosophies, different goals and will BOTH come into conflict with the constitution, even if one side is more cavalier and open about dismissing the constitution while the other side, while being just as bad, continues to cloak itself in constitutional rhetoric.

Mr. Rychlak,
Thank you for this article. It sheds light on the discussion streaming beneath Deal Hudson's piece on the topic. I will vote for McCain for the very reasons you have elucidated. But it does seem to me these conservative judges fall short in their recognition of the natural law, i.e. those laws that congress nor anybody has the right to transgress. The Terri Schiavo case was a good example. The highest court in the land had a chance to save a woman's life and hid behind judicial theory to abrogate their responsibility. I don't mean to suggest that someone can't refuse medical treatment, but simply that it was a clear case of injustice, being that she had no written will and her husband was too conflicted to allow him to put her to death. If these were judges in Nazi Germany we'd try them for war crimes simply for allowing such an atrocity to happen. But as conservatives today we hold these men up as the model. I prefer judges who check their opinions at the door in all areas of prudential judgment. But a judge who will not act on principles they know to be unalterable and within the proper scope of government has checked their conscience at the door as well.

Excellent article. The concept of a ‘living, breathing constitution’ is one that is designed to render the constitution pointless and irrelevant. If, for example, the right of free association of the Boy Scouts is deemed reprehensible by some because the Boy Scouts explicitly exclude homosexuals, a justice who believes in a ‘living, breathing constitution’ will ignore the first amendment and justify doing so by suggesting that a national consensus exists against such ‘discrimination’.

This is what we get with justices who are more interested in keeping up with foreign law or the whim of society than interpreting the constitution. When justices legislate from the bench, they take the deliberation process away from the people of this country, and the representatives elected by the people. The biggest reason Roe v. Wade is still such a volatile issue after 35 years is precisely because neither our nation as a whole, nor the individuals states have the ability to address the legality of abortion on their own. The debate on abortion was taken away from the people and enshrined as a constitutional right without ever going through the constitutional process.

It's interesting that comments like, "Excellent article. The concept of a ‘living, breathing constitution’ is one that is designed to render the constitution pointless and irrelevant," are the kind of comments Protestants make about Catholic tradition. "Living, breathing tradition" is "designed to make the Bible irrelevant."

Sorry, but the sola scriptura argument (and that means, only what is written) is invalid. More importantly, the people who argue original intent -- never follow it out; the original intent included slavery, and slavery included the ability to kill slave (including children in the womb). Therefore, under the original intent of the Constitution, abortion is already allowed. But people dismiss it, and read into the Constitution what they want out of it; all sides do it. This is what happens: interpretation ALWAYS happens; we are no longer living in the context in which it was written, and to reconstruct it is as faulty as the Protestant attempt to reconstruct an "original Church" outside of tradition.

While I don't believe in the right to "bear arms" is a necessary right of human existence, I do think Joe H is right in his basic meaning: if it is a true right, having it written down doesn't make it more of a right. Indeed, as Joseph de Maistre points out, you only write it down -- when that right is already in question.

While the Constitution is a most useful document, it is the work of men, not divinely inspired, and more of a pragmatic document than it is realized.

The one strenght of the Constitution, its sole power, is the willingness of people to accept it and abide by it. (as Alexander Groth says, the rule of law is no more nor less than the rule of men and women who obey the law). It was in order to have people accept it that negotiations were made at the writing, to see what everyone would agree to accept. Thus was slavery kept, because if it wasn't a lot of states would not have accepted it.

As an imperfect, pragmatic, work of men, its power resides over the same basis: the willingness of most people to obey it and to live together on a common endeavor (when that failed, we had a Civil War).

So, all this talk of "original intent" tends to obscure the fact, treat the Founding Fathers as divinely inspired Moseses, instead of imperfect politicians reaching an agreement by means of compromise and obfuscation, and grants a secular document the status of Holy Writ.

While I understand the desire to make the constitution fit the times in which we live, I feel that the concept of a living constitution makes us vulnerable to making changes based on popular culture and political whim. I am not sure that is what the founders intended. I think that is why they made the amendment process as they did. Also while it is true that the founders went along with slavery at the time, it has always been my understanding that they did so because they were unable to reach a satisfactory compromise to the issue. As a consequence of that they just left slavery as it was until perhaps a better opportunity came along to further address it. I am sure most of them envisioned an eventual solution reached by deliberation not a solution reached by civil war.

The point of my post was not to compare the constitution to the Bible. The constitution is not held to be a divinely inspired document by the Catholic Church, or anyone that I know. My point is that issues which are not specifically addressed in the constitution should be handled via legislation, either at the state or federal level. One concept which is implicitly promoted by a ‘living breathing constitution’ approach is the idea of legislating from the bench. It is (supposed to be) the duty of the judicial branch of government to interpret the law. It is not the duty of the judicial branch to make law. At some point, if enough state legislatures get behind a law, the constitution can be amended to address a specific issue.

By encompassing the ‘constitutional right to an abortion’ into the fourth amendment, the Supreme Court ended debate on the legality of an issue which is not addressed by our constitution. This is wrong, and it never would have taken place without the living, breathing constitutional approach.

And how many more issues are we going to see taken out of the legislative process? Millions of California voters voted overwhelmingly against legalizing homosexual marriage, and yet four state Supreme Court judges overturned them. Four people (and no I don’t care if they are judges) overturning the will of millions? That’s tyranny, and it’s not how our government is supposed to work.

So, the Constitution is the work of men, not God, and thus subject to modification (one hopes that proper procedure is followed in its modification, of course), indeed, the possibility of it being modified is one of its strenghts.

But that the Judiciary is taking more power than it had at one point, it is nothing remarkable. The constitutional theory rests on the balance of three powers: Executive, Legislative, and Judicial, each keeping the other two in check. The total amount of power each has over time vaires, as each tries to seize more power to itself (the Executive and Legislative do that all the time and no one seems to find it remarkable).

The seizure of power by the Judiciary can be traced to the Civil Rights movement, when the other powers dithered - due to electoral concerns, letting the Judiciary take the lead, which made them aware of their power, and hungry for more.

Do they need to be cut down to size? Probably? Is it unsconstitutional? The Constitution is based on that constant struggle of three competing powers. All you can hope is that the Executive and the Legislative start taking back the power they let slip from their hands.

I am an attorney (and Catholic). As an originalist, I categorically reject the concept of the "living Constitution" as inherently dangerous to our rights--whether they be natural rights or constitutional rights.

There are some...very unconventional...arguments presented by the a few of the commenters above. One in particular struck me as particularly strange--the commenter argued that there are "self-evident" rights that do not need to be explained in a constitution, but then argued AGAINST adhering to the original intent/text of the Constitution and FOR living constitutionalism. This argument misapprehends living constitutionalism, which rejects moral (and yes, legal) absolutes in favor of the whims of the day.

I could say more, but I will end with an example of the dangers of living constitutionalism. Professor Rychlak wrote:

These different constitutional theories can lead to very different results. In general, the "living Constitution" test gives judges great discretion to fashion results and set policies. Critics would say that this theory lets judges amend the Constitution without going through the amendment process. Supporters of the living Constitution will point out that it gave us Brown v. Board of Education,whereas "original intent" gave us "separate but equal."

Professor Rychlak makes many good points, but this last sentence needs some follow-up. He is right that living constitutionalists often make the argument that original intent/text led to "separate but equal" in the Dred Scott case. That is debatable. But one thing is undeniable: if the justices who decided that case had openly espoused "living constitutionalism," they would have reached the same result they did reach, given that the dominant norms of their day supported slavery! This point is often ignored, but it is essential to understanding why living constitutionalism is dangerous.

In other words: support of living constitutionalism can and does lead to very, very bad outcomes, outcomes that undermine rights that should be "self-evident," but in reality are often disregarded. That is why adhering to an established text, which does not bend to the whims of the time, is far preferable. And that text is extremely good--of course it is not the Bible, but the Constitution is still the best political document yet devised by humanity. And if it needs changes, the amendment process can take care of those changes...instead of changes being imposed by judges acting on their whims.

MRB,
Thanks for that astute argument. I'm not sure whose post you were referring to, but I suppose you found mine strange as well. Let me clarify. I do not see myself as someone who believes in a living constitution, rather I see myself as someone who believes in foundational principles. An immoral law is no law at all, and mustn't be adhered to, especially by judges. In other words if congress passed a law decreeing something so abominable, even as an amendment, the judiciary would have to overrule it. And then you'd have that struggle for power alluded to by Adriana. After all, judges can be impeached for egregious decisions. The checks and balances provided for in our government are brilliant. But conservative stalwarts on the bench go too far in checking foundational principles at the door. They say, whatever law society creates we will uphold. They envision a judiciary that never does check the legislature.

"One can never be certain how judges will act once they are put on the bench (reliable "liberal" Supreme Court justices Stevens and Souter were nominated by Republican presidents)..."

Funny. Nobody ever cites the appointments of Democrats to buttress this theory that "no one can be certain" how an appointee to the USSC will behave.

For instance, Ruth Bader Ginsburg: Who would EVER have guessed that an appointee who was chief counsel to the ACLU would turn out to be a pro-abortion Justice on the Court???

There's nothing magical about being put on the Court that transforms people. The only "magic" involved is that, in vetting their appointees, Democratic Presidents pick only overtly pro-abortion people, while Republican Presidents--terrified of charges of "Litmus Test!"--have covered their eyes and stopped their ears to solid evidence that their appointees were sympathetic to abortion.