December 20, 2009
The Childish Constitution and the Mature ConstitutionBy Selwyn Duke
It's ironic that the more we describe our Constitution as a "living document," the more we turn it into a dead letter. As to this terminal state, consider the current debate over health care reform. How many politicians give the constitutionality of the mammoth bills spawned by the Houses even the slightest consideration? Why, Nancy Pelosi must not have, as she was so "shocked" when asked about it that the only reply she could muster was "Are you serious? Are you serious?!"
When leftists do deign to consider the matter seriously, they may take a leaf out of esteemed intellectual Ruth Bader Ginsburg's book and aver that the Constitution should not be "stuck in time." Often missed in this debate, however, is that conservatives don't say it should be stuck in time -- just stuck in law. And law is changed not by time, but by people...that is, certain people.
The problem is that leftists do not want merely a living document. This we've always had, as the Founding Fathers gave us the amendment process, through which we may lawfully change the Constitution.
Leftists want a childish document.
Here is what I mean. We all know how children can learn more quickly than adults; this is why childhood is the best time to learn languages. Children are as wet clay, easily molded as pleases the potter's eye. But another way of putting it is that they're very unstable beings. They are prone to flights of fancy, to mood swings and outbursts of emotion. One moment they're ecstatic; the next, they have a tantrum; first they say they love you, and an hour later, that they hate you. A child changes to suit the times -- his version of the times -- continually.
With age, however, that clay starts to harden. This certainly contributes to a lot of frustration for the grown-up struggling to learn a skill later in life, but becoming a stable being is necessary for responsible citizenship. (This is why it's so tragic when twisted hands create hardened vessels that tilt left and don't hold water.)
Similarly, like a mature adult, the Constitution can "learn"; it can "improve itself" through the amendment process when found wanting. But like any adult, it doesn't learn quickly; the amendment process is a long, involved one that minimizes the possibility that a change will be the result of a fit of emotion arrived at without due consideration. It ensures that the nation will have a chance to take a deep collective breath and count to ten. The Constitution serves as a stabilizing factor.
In contrast, leftists want a child Constitution. They want its meaning to change with the winds of court rulings, which can be handed down overnight. And why wouldn't they want this? A child is easily manipulated.
Yet although I've done it myself with my analogy, anthropomorphizing the Constitution can be perilous in a solipsistic world where people increasingly believe that image or urge is reality. So, literally put, there are no living and dead documents; there are only people in whom principles are alive and people in whom principles are dead. If someone is in the former category and abides by the Constitution, he isn't "stuck in time." He is stable in principle.
As for leftists, their version of a "living document" is at worst a lie and at best a rationalization, which is when you lie to yourself. What really bothers them is not that the correct perspective yields a "dead" Constitution; it's simply that they find the process necessary to make it come alive an impediment to their aims. As the euphemistically named Equal Rights Amendment proved, convincing a majority of today's Americans that we should dispense with the majority will of all generations of Americans isn't easy. Thus, leftists want to transfer as much decision-making power from the people to the judges, thereby enabling five Black Robes to do with the stroke of a pen what a billion-dollar activism campaign might not accomplish.
And to justify this malfeasance, such jurists are given fancy names, such as "pragmatist." But I have a different name for them: un-American.
This is not hyperbole. Sure, today we have difficulty defining what it means to be American, as the very kernel of our traditions is under assault. Yet if being an American means anything beyond mere citizenship, and if any element of such a definition should be obvious, it's that being an American involves abiding by the founding documents of America. To say otherwise is like asserting that you can be a Confucian while rejecting the words of Confucius, a communist while rejecting the tenets of communism, or a golfer while rejecting the rules of golf.
And golf can be quite closely analogized to what's at issue here. Golf has a rulebook, which is tantamount to the Constitution; a ruling body, which is like a legislature; players, who are like the people; and on-course tournament officials, who are like judges. The players have to abide by the rules even if they find some of them objectionable, and breaking them brings penalties. Likewise, while the ruling body can amend the rules, until and unless the process for doing so is undertaken, they also have an obligation to follow them.
This now brings us to the officials (judges). Unlike the ruling body, there is no process at their disposal by which they can alter the rules. Their role is very limited: It's only to apply the rules and determine whether or not they have been broken in a given situation. Now, would it be tolerated if they said, "You know, Tiger Woods didn't break the rule in question here, but we don't like that rule, so we're going to 'strike down' his action," or "Phil Mickelson did break a rule, but we dislike that rule, so we'll let his action stand"?
Now let's take it a step further. What if the judges were a tad more clever about their usurpation and said that the rule book was a living document? What if they contended that the book mustn't be stuck in time and that they have a right to interpret it to suit the times? What if they conjured up new classifications for officials, such as "pragmatist," to lend credence to this obscene dereliction of duty? How fast would they lose their jobs?
Answer: as fast as Americans should start calling for the heads of derelict, activist judges.
After all, if we wouldn't tolerate violence done to the rules of a game, why would we tolerate it done to the laws of our nation? Remember that in just the way a game falls apart if the participants won't follow the rules, a constitutional republic won't work unless we accept the proposition that we'll abide by its constitution.
In reality, leftists' arguments are stuck in time: the age of no reason. They tell us they're interpreting the Constitution to suit the times, but this is nonsense. It is interpreted to suit leftist tastes. What is true is that the Constitution lawfully may be altered to suit the times -- if this is believed necessary. But this is the job of elected representatives, who are chosen by the people and are meant to reflect their will. And insofar as this alteration goes, the Constitution is as alive as it needs to be. As for leftists' version of a living document, the only thing it will yield is a dead republic.