Is our Constitution a “Living Breathing Document?”
Well, what is a “Living Breathing Document?” In The American Constitution and The Debate over Originalism, Dennis Goldford defines the concept of a living breathing document. He quotes Harlold Koh, legal expert, as defining the concept as a “flexible pragmatism that views the Constitution as a living document that must adapt to modern times.” Al Gore, during his campaign for President in 2000, explained in a PBS interview that a “living breathing constitution” is one in which “there are liberties found in the Constitution … that spring from the document, itself, even though the Founders didn’t write specific words saying [so]… because we have interpreted our founding charter over the years and found deeper meanings in it, in light of the subsequent experience in American life of the last 211 years of our republic.” Justice Oliver Wendell Holmes Jr., explained that the Constitution evolves as society evolves, saying it “must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.”
So two points stem from this; the constitution has “deeper meanings (that spring out from it) beyond its words, and that the constitution changes as society changes.
The first point is a reference to literary implication; just like beauty, implication is in the eye of the beholder, who does the inferencing. The letter of the law does not change with the subjective implications inferred from it by an individual, nor by society, unless the laws are changed through the democratic-republican processes. Implications are relative, never objective, and uninhibitedly open to all possibilities, based on the analysis of the inference, and not on the document actually changing, and not on the signification of the document actually changing. “I am like Einstein” may imply I am an immigrant, may imply that I am a physicist, may imply that I am smart, or may imply that I have grey hair. However, what will always remain the same is the fact that I told you that “I am like Einstein,” regardless of what implications the reader produces from that. Thus, as it relates to the Constitution, the articles and amendments of the Constitution do not, themselves, hold implications, nor do their authors dictate implications into them; implications of the Constitution are up for anyone, anywhere, to have any opinion on. These opinions, however, do not change what the Constitution says.
In fact, Madison, when speaking to Congress on the Constitution, made it clear that the document was one of expressed powers, and only those powers, for the government, and that the document is explicit (not implicit) in it’s wording.
What of the idea that the Constitution changes as society changes? Well, this contention is firstly false; we have already shown that words don’t change, people’s inferences change. Thus, what’s really being said is “We change what we infer about the Constitution, not based on the Constitution, but on society’s positions.” This position is the great antithesis to the idea of a Constitution, and a Republic. Allow me to explain:
PUBLEUS, the pseudonym for the Federalist Founding Fathers (including Alexander Hamilton and James Madison) who wrote “The Federalist Papers” explaining and defending the Constitution to the population at large, wrote explicitly, numerous ties, in numerous articles, that the primary purpose of our Constitution was to assure a government that guarantees equal rights to self government to it’s citizens. To do this, thus, a Constitution and a Republic must be set up so that the whims of a tyrannous minority (what Madison calls a ‘factitious minority’) and more dangerously the whims of a tyrannous majority (of which PUBLEUS and others, such as Jefferson, wrote prolifically on) can NOT take away any individual citizens Natural Right to self government (liberty, life, fruits of liberty, etc). What Publeus called the radical ends of a spectrum (monarchy, and anarchy) are both only a vote away from a tyrannous majority in a Democracy; thus, a Constitution, would be sit to give government certain powers and only those powers. The Constitution would be clear, explicit, and concise in this manner, to avoid false-interpretation violating the rule of law; that is to say, our constitution is the final arbiter on policy decisions, not government.
The majority would not be able to determine what can be passed or not passed, but instead the Constitution would determine what the majority can pass or not pass.
This, in a nutshell, was the idea of The United States of America.
I’ll repeat; The majority would not be able to determine what can be passed or not passed, but instead the Constitution would determine what the majority can pass or not pass. This is the POINT of a Constitution.
If the whims of society (i.e. majority) can dictate what the Constitution ”really implies, with deeper meaning” beyond what it actually says, then ‘society’ (majority) can decide to pass or not pass any law they want based on their ‘idea’ of what the Constitution ‘ought’ to say.
In other words, the Constitution would determine what the majority in Congress can do, but the majority in Congress or in society can decide that the Constitution says whatever the majority says it says. It’s a sort of doublethink; The Constitution delegates what they can do, and only do, but the Constitution is whatever we say the Constitution is at any moment we wish for it to change. This is the very Definition of what Publeus called “tyranny of the majority.” It’s, as well, double think in the following manner; Somehow we are a Republic, but by the “Living Breathing” thesis, we are essentially a pure majoritarian Democracy.
Thomas Jefferson forecast that Americans may loose faith in the Constitution and it’s underlying principles, and that to avoid a de-facto tyranny of the majority, we ought to have a referendum in the nation to change the Constitution every few years or decades. Hamilton, under PUBLEUS, in the Federalist Papers, responded to this critique; he said that any and all societal whims (majority whims), and he used ‘society’ as a term explicitly numerous times, of which the Constitution exists to limit in power, would be fully empowered by a scheduled Constitution referendum; for all they would have to do to implement a tyrannous agenda is wait for the next referendum!
Madison agreed, and eventually, so too did Jefferson. They all agreed with how Madison and Hamilton framed the situation on how to change the Constitution; when almost every person in every state, in every class, and in every subculture, feels a change to the Constitution is necessary, then Washington and the States may amend the Constitution. We did this when we ended slavery! This process, of super-majorities and assuring everyone (or almost everyone) is on board with a change in the Constitution, assures that minority voices won’t get tramples on in the debate on an amendment change, and in turn, their Natural Rights won’t get trampled on. PUBLEUS also added if we ever need to draw up a new Constitution, it would only be after generations of tyranny, and a refusal by government to follow the words of the Constitution. John Locke, the grandfather of Republican ideology, agreed with this postulate, as did Jefferson and Washington.
We’re starting on that slippery slope, early in our history of government that doesn’t follow the Constitution. We are down this path not due to a disregard for the Constitution, but due to a fallacious ideal; the ideal that the Constitution says whatever society at the time demands that it says, aka “Living Breathing” thesis.
Eerily, Publeus was critiqued by anti-federalists that the Constitution would be interpreted this way and that, in any way the Supreme Court saw fit, interpreting it not based on what it said but based on societal whims. Publeus responded, and won over many Anti-Federalists, such as Jefferson, with this argument; The purpose of the Supreme Court has a ‘judicial duty’ to interpret whether a government action and the Constitution have an ‘irreconcilable variance’ prima-facie. The idea harkened back to “Judicial Duty” concept of Common Law courts of Great Britain; they used a concept of “Manifest” variance, or in other words, variance between an action and the laws manifested, prima-facie, letters. Common Law judges made clear, just as our Founders did, that ‘spirit’ or ‘intention’ of the law was not something to be looked to when discussing whether an action is in violation of that law. Publeus explained Irreconcilable Variance as such; if an interpretation of the wording of the Constitution, and just the wording, (the letter) is reconcilable with the Constitution’s wording, then that governmental action is permissible, by the Supreme Court, even if the Supreme Court disagrees with that interpretation. Thus, The Constitution gives room for interpretation within it’s governmental structure, that these interpretations will be decided as reconcilable with the Constitution or not by the Supreme Court; this was the concept of “Judicial Duty” as it related to the “Manifest” and obvious wording of the letter of the Constitution, and not its implications.
The Supreme Court, post 1890, abandoned the “Irreconcilable Variance” lesson in the Federalist, as well as the “Manifest” difference passed down from Common Law precedent. They abandoned it throughout the early 20th century as a means to allowing the government to pass Progressive legislation (i.e. New Deal, Federal Reserve, etc). The reason why our Supreme Court hasn’t stopped our government’s slip from a logical reading of our Constitution is because, many decades ago, it abandoned what PUBLEUS, Madison, Hamilton, and John Jay called for; Judicial Duty as it relates to Irreconcilable Variance; because, many decades ago, SCOTUS abandoned the precedent of “Manifest” variance.
The Constitution serves to delegate powers, and only those powers, to the Federal Government. What those powers entail is, and always has been, up for debate; this is why the Constitution calls for debate in such places as the Senate and House of Representatives. However, a debate over what those powers are suggest words don’t mean what they say, and mean, in some solipsistic logic, whatever the readers dictate them to say. A debate over what the Constitution says is almost a non-sense concept, because all you need to understand the Constitution is the ability to read English.
Definition of “Living Breathing” :
Winkler, Adam. A Revolution Too Soon: Woman Suffragists and the ‘Living Constitution’ (“Society changes and evolves, living constitutionalism requires that constitutional controversies, in the words of Oliver Wendell Holmes Jr, “must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.”)
Al Gore defining it: http://www.pbs.org/newshour/election2000/candidates/gore_3-14c.html
Goldford, Dennis J (2005) The American Constitution and the Debate Over Originalism. Cambridge University PRess, pg 59.
More on Harold Koh’s definition of it, notably parallel to the definitions presented in Goldford, Al Gore, and Winkler : 41 Duke Law Journal 122, 128 (1991) note 34
On Founding Fathers:
On Thomas Jefferson: http://press-pubs.uchicago.edu/founders/documents/a1_8_18s16.html
On PUBLEUS and Founders:
Adams, John, Essay on Ethical Government
Publeus (Hamilton, Madison, Jay) Federalist Papers # 49 and others.