The mantra of the Constitution as a living, breathing document is thrown around today by Big Gov Statists as if it was legitimate. It’s not. This ill-advised idea has been around since the early 20th century.
Howard Lee McBain (1880-1936) was an American political scientist (Ph.D. Columbia) who after several teaching posts became a professor of constitutional law at Columbia. His books include The New Constitutions of Europe (with Lindsay Rogers, 1922) and The Living Constitution (1927). The “living and breathing document” phrase apparently first appeared in The Living Constitution.
It ceases to be a constitution
Imagine contacting your auto insurance claims agent following an accident. “I truly am sorry. Your coverage is based upon a ‘living, breathing’ insurance policy. What you signed up for has evolved and changed. You’re actually not insured as you thought you were.”
Something of an American renaissance—a rebirthing, a renewal—is underway. A growing movement of citizens are motivated to understand the Founding Principles of the United States. Historians will look upon our time as one in which there was a renewed interest in the Constitution.
What about business contracts, trade agreements, legislation, and law? What if it was all open to a “living, breathing” evolutionary interpretation? Commerce would not work. Public policy would be a farce. We could come up with one absurd example after another of how this just does not work in real life.
Yet, for the Big Gov Statists, the “living, breathing” view is to be applied to our nation’s Constitution.
Why would they want to see the constitution as a living, breathing document!
Why would there be this attempt to understand the Constitution in this way?
Words convey meaning and language is made up of words. Common meaning in language is communicated, both orally and in written form.
“If the Constitution’s meaning can be erased or rewritten, and the Framers’ intentions ignored, it ceases to be a constitution but is instead a concoction of political expedients that serve the contemporary policy agendas of the few who are entrusted with public authority to preserve it” (Mark Levin, Liberty and Tyranny).
A “concoction of political expedients” … ah, an “agenda of the few.”
In a letter to Henry Lee in 1824, James Madison, considered the “father” of the Constitution, wrote:
“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.”
Madison saw that if the text of the Constitution is not understood in the meaning in which it was written and ratified, the Constitution will become inconsistent and unstable, and its powers will not be faithfully exercised.
He wrote this 37 years after the Constitutional Convention and ratification by the States in 1787. Even at this early point, he wrote “that the language of our Constitution is already undergoing interpretations unknown to its founders.” Imagine if Madison could see what has happened since his day!
To the Big Gov Statists, the meaning of our Constitution is not what the Founders intended. Instead, the Constitution is open to changes in language over time and to some very novel methods of interpretation! All of this to satisfy a political agenda.
The influence of Darwin and German philosophy
Darwin’s evolutionary thought w0uld emerge and expand in the later half of the 1800′s. Progressivism, rooted in German philosophy in the 1800′s, would then take Darwinism and apply it to political thought.
“Living political constitutions must be Darwinian in structure and in practice … All that progressives ask or desire is permission – in an era when “development,” “evolution,” is the scientific word—to interpret the constitution according to the Darwinian principle …”
Who in the world said this? Why, it was President Woodrow Wilson in 1912.
Beginning in the early part of the 20th century, we began to see unprecedented attacks upon the Founding Principles and the Constitution by leading intellectuals and social reformers in the United States. These attacks were rationalized in the name of “progress.”
The American soul
We cannot understand the “culture wars” and the polarized political tension today without understanding these two very different ways of interpreting the Constitution.
The Declaration of Independence is the “WHY” of our nation. As individuals, we are endowed by the Creator with rights – life, liberty, and the pursuit of happiness are among these rights. These rights are inalienable, they are God-given and cannot be taken away by human government. This is revealed to all humanity through natural law.
The Constitution is the “HOW” of our nation. It is the extent to which a limited national government can operate to preserve these rights for the states and for the people.
In Madison’s words, will it be the “sense in which the Constitution was accepted and ratified by the nation … in that sense alone it is the legitimate Constitution?” Or, will it be a Darwinistc, “living and breathing” understanding?
These divergent interpretations will lead to very different outcomes for the United States of America.
But there’s growing evidence that many Americans are awakening to a renewed interest in the Constitution …
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© Brian Del Turco. This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License.