Constitution is not a ‘living document’

“On every question of construction, (let us) carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying (to see) what meaning may be squeezed out of the text, or invented against it, (let us) conform to the probable one in which it was passed.”

One of the most dangerous philosophical and patriotic heresies facing the American Republic is the argument that the Constitution is a “living document” designed to be flexible enough to assign to the federal government the power to apply “new solutions to new problems.”

This stunningly ignorant idea willfully and corruptly ignores the first two hundred years of our understanding of the primary principle that the Founders wrote into the Constitution.

It is a simple principle containing what the Founders understood as a part of the “wisdom of the ages”, many of the profound truths of history and the nature of mankind. In the 19th century Lord Acton defined that wisdom in nine words: “Power tends to corrupt and absolute power corrupts absolutely”.

The solution to the flaw in human nature that allows power to corrupt was enshrined in the Constitution in one simple and overriding idea. It was to proscribe and limit – severely limit – the authority of the central government to the powers delegated to it and to assign all others to the states and the people. Putting aside for the moment the absurdity of even having to make this argument at this time in our nation’s history, how did that rare and inspired group of men achieve that goal?

Well, for one thing, the Founders were so careful in the assignment of the delegated powers that instead of saying what the federal government could not do, which would have left anything not specifically prohibited to that government to the discretion of those in power. The Founders wrote in Article 1, Section 8,(and in large part, elsewhere) that the Congress had specific, delegated powers, thereby prohibiting the use of any non-delegated ones, as James Madison, universally known as the “father of the Constitution”, clearly said in Federalist 45, “”the powers delegated by the proposed Constitution to the federal government are FEW and DEFINED.

A century later, one of the great Supreme Court justices of the 19th century, Joseph Story, echoed Madison; “The Constitution was, from its very origin, contemplated to be the frame of a national government, of special and enumerated powers, and not of general and unlimited powers.” The same limitation on power was assigned to the Executive branch in Article 2 and to the Judiciary in Article 3.

Thomas Jefferson put it more informally, “Let no more be heard of trust in men, but bind them down from ‘mischief’ by the chains of the Constitution.”

By 2009, Madison’s view in Federalist No. 45 has become regarded as quaint and unpopular, for a literal interpretation would indict much of the federal government’s activities at that point as unconstitutional.

As a consequence, Madison’s view is all but unknown among Americans. James Madison notes taken during the Constitutional Convention may be found at http://avalon.law.yale.edu/subject_menus/debcont.asp

There are several reasons the Founders were so careful to limit the power of the central government.

The first, and most obvious, is the prevention of a deliberate tyranny. The Founders were generally well-schooled in world history and applied that understanding to the crafting of the new government. They used the knowledge of historical tyrannies to limit that possibility through the new Constitution. Jefferson could read Latin, Greek, French, Italian and Spanish and was likely to have read Caesar’s commentaries in the original Latin from his own extensive library. He could also “calculate an eclipse, survey an estate, tie an artery, plan an edifice (in, fact, in1976, the American Institute of Architects chose Jefferson’s design for the University of Virginia as the greatest architectural achievement of America’s first two hundred years) try a cause, break a horse, dance a minuet, play the violin and write better than anyone in the Continental Congress”.

Is there anyone in power today with such understanding and ability?

The second is a much more subtle and in many ways a much more dangerous one. It is the creeping and gradual falling away from the idea of limitation on government and an increase in the acceptance of the idea that the federal government is a benign servant of the people, and as long as government serves those needs, the strict adherence to the Constitution is unnecessary or irrelevant. But power created for a good purpose may be easily turned to power used for a bad one. Thus may tyranny begin with good intentions. To paraphrase Jefferson, without the constraints of the Constitution, good mischief may easily become bad mischief.

There are many “educated“people today who hold the view that as long as the “mischief “is for the good of the people, the meaning of the Constitution can be stretched, even until it is unrecognizable and the power of the central government should acknowledge no restraint.

With as little respect as possible for the people who believe that alien idea, it should be argued that the federal government was formed by the states primarily to conduct international relations, fight wars, keep states from fighting with each other, and to protect the natural rights of the people from anyone who would dare attempt to usurp those rights, but the serving of the needs of the people is given to the states, the counties, and the cities and the representatives who are closest to the people they serve.

Again, James Madison in Federalist 45…”the powers reserved to the several states will extend to all objects which…concern the lives, liberties and properties of the people and the internal order, improvement and prosperity of the state.

To believe the modern “progressive” view of the federal powers contained in the Constitution, it is necessary to ignore not only virtually all the historical knowledge of the relationship between man and power, but to put aside all knowledge of the people who seek the expanded power today.

The simplest comparison between the intellectual power and decency of Jefferson, Madison, Franklin, et al, their desire to create a nation in which every individual should be free to pursue his or her dreams so long as they do not infringe on the rights of all other individuals to do the same and the clever but slovenly, anti-intellectualism of the likes of Pelosi, Reid, Murtha and President Obama should make it self-evident that the power of government must be controlled by the chains of the Constitution if we are to survive as a truly free people. Against the philosophy of the progressives we must engage and argue, against the moderate and the uninformed we must teach if the great experiment called America is to survive.

As Lord Acton also said, “Liberty is not a means to a higher political end. It is itself the highest political end.”

The quote at the beginning of this piece? Thomas Jefferson.