All Right, Have It Your Way - It's a Living Constitution

For the past thirty years, conservatives and progressives have debated a fundamental question about interpreting the U.S.  Constitution.  Conservatives hew to the doctrine of originalism -- that judges must seek the original meanings of the document as of the time of its adoption, and enforce them.  Progressives like the theory of a living Constitution, one that changes shape and meaning with the times, as determined by the judges. 

Neither side is pure.  Conservatives cannot ignore the impact of history -- Justice Scalia describes himself as a faint-hearted originalist -- and few progressives want to discard original meaning totally, though they come closer to this position each year.  It is a complicated debate, with many shades of opinion.

The basic problem is not with the conflict, but with something on which the contestants seem to agree, which is the consequences of each approach for government power.  Both seem to believe that the originalists' approach would cabin government power, while the living Constitution automatically means that government power can expand steadily, at least in the economic sphere. 

But why should this be?  To concede that the Constitution is living, with meanings evolving in the light of our national experience, should in no way imply that we must grant the government continuing dollops of power.

Quite the reverse, in fact.  Starting with the Progressive Era and continuing through the New Deal and the Great Society, governments at all levels have asserted increasing power.  And they have used this power to sow the ground with salt wherever they turn their attention.

Writing on AT a year ago, Monty Pelerin analogized government policies to "Kevorkian economics," in honor of "Dr.  Death" Jack Kevorkian, as one societal organ after another goes on life support.  His list included the insolvent banking system; the teetering market for government debt; an unsustainable expanding welfare system; cash flow-negative Social Security; growing regime uncertainty in the regulatory system, the housing market; Medicare and Medicaid, student loans; green energy and its converse, the suppression of efficient energy sources; and government-run organizations such as Amtrak and the postal service.

He could have added the destructive effects of public employee unions, the crony arrangements between municipal officials and developers that lead to cases like Kelo, the misuse of municipal borrowing authority, the trial lawyers' repetitive raids on productive enterprise, and so on.

This dreary history is due in large part to the removal of protections for the economic liberties of the producing classes (including, most emphatically, the working class) that occurred over the past century, and to the loss of healthy skepticism that rulers given unlimited power would use it wisely.  The experience of the 20th century shows that removing all checks on government power does not result in wise rule by disinterested mandarins.  It produces, in the words of AEI's Michael Greve, "an unstructured, undisciplined, exploitive interest group free-for-all" as different groups compete to capture fragments of governmental power and use it for their own purposes.

A true oddity of the living Constitution position is that its adherents notice none of this.  Reading contemporary judicial opinions on government power is like making an archaeological dig into the intellectual ruins of the political thinking of the 1930s, if not the 1910s.  It is interesting to antiquarians, perhaps, but of limited relevance to grasping the realities of contemporary government.  Heaven forefend that a court should notice what was apparent to Monty Pelerin.

Instead, we should embrace the point made recently by economist Deirdre McCloskey:

It would have been hard to know the wisdom of Friedrich Hayek or Milton Friedman or Matt Ridley or Deirdre McCloskey in August of 1914, before the experiments in large government were well begun.  But anyone who after the 20th century still thinks that thoroughgoing socialism, nationalism, imperialism, mobilization, central planning, regulation, zoning, price controls, tax policy, labor unions, business cartels, government spending, intrusive policing, adventurism in foreign policy, faith in entangling religion and politics, or most of the other thoroughgoing 19th-century proposals for governmental action are still neat, harmless ideas for improving our lives is not paying attention. 

We need not insult our forebears.  They faced some real problems and invented some solutions, and the 20th century produced an astounding burst of human creativity and increases in well-being.  But the dark side of the governmental forces they unleashed are threatening to overwhelm us, and we should allow ourselves to learn from the experience. 

It is actually the proponents of the living Constitution, with their solicitude for untrammeled government power, who fit the description of the House of Bourbon attributed to Talleyrand: "They have learned nothing, and forgotten nothing."

So by all means, economic conservatives can embrace the concept of the living Constitution.  Then we can get to work figuring out how to use it to free us from the strangling hand of the regulatory state.

James V.  DeLong is the author of Ending 'Big SIS' (The Special Interest State)  and Renewing the American Republic.  He can be reached at

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