CONSTITUTIONAL MYTHS & REALITIES - Eight of 'em, so pay attention! - Part VIII

This is the final installment of an eight part series adapted from a speech delivered on April 29, 2003, at a Hillsdale College National Leadership Seminar in Dearborn, Michigan. Reprinted by permission from Imprimis, the national speech digest of Hillsdale College. [Part VII is here]

Myth or Misconception 8: The Constitution is a "living" document.

The debate between interpretivists and non-interpretivists over how to give meaning to the Constitution is often framed in the following terms: Is the Constitution a "living" document, in which judges "update" its provisions according to the "needs" of the times? Or is the Constitution an enduring document, in which its original meanings and principles are permanently maintained, subject only to changes adopted in accordance with its amending clause? I believe that it is better described in the latter sense. It is beyond dispute, of course, that the principles of the Constitution must be applied to new circumstances over time—the Fourth Amendment on searches and seizures to electronic wiretaps, the First Amendment on freedom of speech to radio and television and the Internet, the interstate commerce clause to automobiles and planes, etc.

However, that is distinct from allowing the words and principles themselves to be altered based upon the preferences of individual judges.

Our Constitution would be an historical artifact—a genuinely dead letter—if its original sense became irrelevant, to be replaced by the views of successive waves of judges and justices intent on "updating" it, or replacing what some judges view as the "dead hand of the past" with contemporary moral theory. This is precisely what the Founders sought to avoid when they instituted a "government of laws, not of men."

There is no charter of government in the history of mankind that has more wisely set forth the proper relationship between the governed and their government than the American Constitution. For those of us who are committed to constitutional principles and fostering respect for that document, there is no better homage that we can pay it than to understand clearly its design and to take care in the manner in which we describe it.