Monday, September 15, 2008

The Dangers of a Living Document

There is a tendency among both liberals and conservatives to view the Constitution as a "living document" - by permitting the Supreme Court (and the federal courts in general) to "interpret" the text. But as long as the president is one of "us" (whether liberal or conservative), this is okay - as we will get the goodies from government we want - whether federal oversight to abolish state abortion prohibitions, or federal oversight to mandate the states to permit it. Of course, that's just one issue (albeit a life and death issue) among many.

The founders of the United States rejected the "living document" theory, as well as the supreme central government (the Crown) in giving us a limited republic comprised of federated states with a written general constitution. By contrast, the British Constitution has always been unwritten. It is the ultimate "living document" that amounts to evolving common law as interpreted by judges. The people, though having representation in Parliament, have little power over their own constitutional law.

The American federal government as we understand it today has fallen back to a certain extent on the "unwritten" British model - as the Constitution is treated, at best, as a "guideline" or an obstacle to work around instead of as a chain to bind the government. Today's federal government treats the Constitution not as a curb, but as a motor. And they can only do this by clever, strained, and sometimes outright outrageous interpretation. The executive and legislative branches will not use their checks and balances against the judiciary. Why? Because they benefit from the arrangement.

They like it the way it is. And so do the major political parties, including whoever the opposition is at any given time. Because the opposing party knows that when they take their turn in power, they too will have the judiciary doing their bidding. Instead of protecting us from tyranny, both major parties are pushing their own "new and improved" tyranny of their own making. Instead of representing the people, they are representing the parties (as well as the lobbyists who ply them with money and threats) - all the while dividing the people, expanding the federal government, and distorting the original intent of the Constitution.

If you want to see where this leads, take a look at how the unwritten, living Constitution in Britain has been interpreted of late by its courts.

This is not a liberal/conservative issue, nor a Republican/Democrat issue. The Constitution protects all of us and is designed to prevent such mischief.


Brian P Westgate said...

Did you watch last night's 60 Minutes Interview with Justice Scalia? Sure was interesting how they mentioned how Justice Ginsburg claims it's a "living" document, to which he responds that it's really a "dead" document. He of course is correct! And I'd bet that was the inspiration for this post! Good inspiration too, I might add.

Peter said...

Yes, and remember that McCain has promised judges with the Scalia mindset. As did "W," btw. No Democrat would EVER make such a pledge. In fact, they call such judges extremists. So, I tend to think it's more of Republican/Democrat issue than this post might indicate.

Father Hollywood said...


That only means that the Democrats are more honest in their disdain for the Constitution.

Talk is cheap. So are promises. But I realize it has to start with talk. But they're not even talking about returning the government to its constitutional lock-box.

When the Republicans in Congress start talking about abolishing the unconstitutional federal reserve (the central bank) that is devaluing the dollar and allowing big banks to run amok (and then get federal handouts), and when they start talking about the Congress's authority to revoke the Supreme Court's unconstitutional jurisdiction over abortion, and when they start declaring wars instead of passing the buck unconstitutionally to the executive branch - I'll be their biggest fanboy.

Until then, the Democrats and the Republicans only differ in degree not in principle - and even then, the degree of difference isn't very much.

We conservatives have become complacent and tolerant of mediocrity and the "lesser evil" for so long that the bar we accept has become more fit for the limbo than the high jump (and it seems to get lowered a bit each election cycle). We've become afraid to demand that our own politicians toe the line. They seem to think having an "R" next to their name is enough to compel our vote. I think we're giving away those votes too cheaply.

Government is like a pitbull and it needs chained and watched vigilantly - whether Republican, Democrat, or anything else. I find that Democrats are only suspicious of government when it's Republican, and vice versa. In fact, we should be even more diligent in watching over our own.

I also believe the branches are more interested in partisan loyalty than checking and balancing one another as the Constitution stipulates.

"The Republicans. We're less unconstitutional and for a slightly smaller growth in leviathan government than the Democrats!" is not exactly an inspiring slogan.

Father Hollywood said...


Actually, I didn't see it, but it's a great point. A "living document" is indeed a "dead document."

The Constitution is a contract, and who would want to be bound in matters of business, or a lease, or a loan, or employment, or whatever - to a "living" contract? That defeats the purpose of a written contract, doesn't it?

The founders were wise. As Franklin is said to have quipped, they gave us a "Republic" if we can "keep it." I think we have lost our Republic, and the window for its recovery gets smaller as time passes. And the current postmodern culture's disdain for absolute truth and submission to a written document (especially one penned by an earlier generation) makes it even more of a challenge to restore it.

The bad news is that I think the inevitable bankruptcy of the country may be what it takes to rouse the people from their slumber. If we're not conquered by a vengeful foreign country, or if we don't simply dissolve into mayhem and civil war, we may be able to drag ourselves out of the dust and re-boot the Republic and resurrect the Constitution. But I don't see it happening until we hit rock bottom.

Father Hollywood said...

Here is an example of the unintended consequences of wandering away from the Constitution - which nowhere gives Congress or anyone in the federal government the authority to create a central bank and to mandate a fiat currency.

Peter said...

The words you put into the mouths of the Republicans are not the words of their platform, which stands against judicial activism.

The Democrats hate Bush for choosing Roberts, precisely because they want judicial activism. The Gloria Steinems of this world hate Bush, because they know his judicial picks are a threat to their precious right to abortion. Say what you will about the Federal Reserve, and any other threshold test of purity, but I'll take Scalia, Thomas, and Roberts any day. And these are the judges promoted by the Republicans.

Father Hollywood said...


Indeed, there are excellent justices on the court. But you forget that the Republicans also gave us Alito, Kennedy, Souter, and Stevens - in addition to the three you mention.

In fact, Republicans have appointed seven, and Democrats only two. The GOP has appointed 77% of the current court - more than three times the percentage of those appointed by Democrats - and abortion is still the law of the land. Judicial activism continues, even with the thousands of federal judges appointed by Republicans over the years.

Also, the Fed is not a "threshold test of purity" - it is simply an example - and considering the current economic meltdown, a timely and important example - of how leaving the boundaries of the Constitution is a bad thing to do. The Fed is a bi-partisan entity, and there's plenty of blame to go around for it. But someone should be taking responsibility. You can't keep printing money out of thin air and expect the ponzi scheme to go on forever.

If you're paying Visa with MasterCard, something's wrong. Congress's solution (regardless of party) is to call MasterCard and get a bigger line of credit.

The battle over central banking is an old and venerable struggle in American history between those who interpreted the Constitutional conservatively vs. those who saw the Constitution as a "living document."

The Fed was created and is sustained by the latter. If this continues, the expression "Not worth a continental" will morph its way back to "Not work a dollar."

There are myriad examples of bipartisan unconstitutionality - it's just that this one is so pressing, and the silence from both parties is deafening.

Peter said...

No, I don't forget. Republicans have indeed made mistakes. And, I'm working so that we don't make any again. W, for all his faults, didn't. He chose two good men. But the Democrats always choose a liberal. If I were Obama, I'd contribute heavily to the campaigns of Barr and Ron Paul.

Father Hollywood said...

Dear Peter:

As far as how the Democrats should spend their money, good point, except for the fact that Ron Paul dropped out of the presidential election a long time ago - though I'm sure he'd accept money from Obama supporters (from all of those pro-life, pro-hard-money, anti-welfare, states-rights Obama supporters) for when he runs for his *eleventh* term in Congress as the most conservative Republican in the House.... ;-)

President Bush (I never got to be on middle-initial basis with him) has indeed "made mistakes" with regard to the Constitution (maybe that's what you mean by "all his faults"). I have never heard him once say that Congress has the power to remove the jurisdiction of the federal courts on abortion. I have never heard him say anything about the constitutionality of the central bank. Nor did he chide Congress for their refusal to declare war, nor did he refuse their unconstitutional delegation to himself to prosecute war without a Congressional declaration (Congress has no power to give another branch powers the Constitution delegates to the Legislative branch).

Democrats and Republicans alike have turned every presidential election into a battle to appoint members of the Supreme Court. Why is that? Because both Democrats and Republicans want an activist court and a powerful federal government. The Republicans (at least the more conservative ones) want the Supreme Court to outlaw abortion, and the Democrats (the majority anyway) want the Court to uphold it as a "right." Both parties have an agenda that they want the Court to enshrine into federal law.

It's activism no matter which party does it.

The truly conservative position (which is the Constitutional position) is to remove abortion from federal jurisdiction. Period. It's not a federal matter. It's none of their business.

But if Roe v. Wade were fixed in that way, by removing jurisdiction, the Republicans would lose the lock they have on the "Christian Right."

The Republicans benefit by having the Supreme Court (and the federal courts overall) hold unconstitutional jurisdiction - it "gets out the Christian vote" for the GOP - just as the specter of losing the "right" to infanticide and gay "marriage" energizes the Democrats.

The similarity between the GOP and the DP can be seen by McCain's promise to appoint Democrats to his cabinet - though that may just be campaign rhetoric (which is a euphemism for the ubiquitous lies politicians of both parties tell when running). Both parties favor Medicare, Medicaid, Social Security, the Federal Reserve, federal taxes (and the IRS), a plethora of federal agencies, etc. For example, President Bush expanded, rather than abolished, such agencies as the Dept. of Education.

But when it comes to your critique of the Democrats, I agree 100% (at least at the national level - we do have conservative and pro-life Democrats here in the South).

If the Constitution were truly in force, the federal government would be so constrained that it would not be any matter of urgency who gets elected to the presidency. And that's why both parties have a vested interest in keeping government big and the patronage rolling. And both parties will simply print more money to fund their massive federal programs that are bankrupting us.

Peter said...

"Vote Bob Barr. I'm Barack Obama, and I approve this message.

Peter said...

Btw, there is a decent argument to "outlaw" abortion, if it means interpreting the constitution in light of the Declaration of Independence, and its guarantee of "LIFE, . . ." However, no jurist that I know of, including Scalia and Thomas, take this line. They want to bring it back to the states. . . which is what you want too. So, there's no need, really, to caricature the evil "Christian right."

Father Hollywood said...


Now that would be some "Change" all right!

I like the SNL spoof of those little campaign disclaimers: "I'm George Bush, and I approved this muffin."

Peter said...

Btw, please do pardon those who are so ignorant of the constitution that they think that protecting the unborn is a federal issue. If this misunderstanding is their biggest sin, then they're pretty good in my book.

Father Hollywood said...


The problem is the Constitution isn't the Declaration of Independence.

The Constitution lays out what is a federal matter (vs. state or local). Ice cream is good. We all agree. It's just not something that the federal government has any jurisdiction over.

Treaties, yes. Interstate commerce, yes. Wars, yes. The speed limit in Pleasantville, NY, no. Nor can the federal government establish a church, take away freedom of speech, etc. - at least if the feds feel constrained by the Constitution.

The Constitution exists to limit the federal government, to enumerate what it may do. As we have seen, giving the federal government *any* jurisdiction over abortion has not been good - it has resulted in 40,000,000 deaths and imposed a pro-abortion position on the states.

This is the problem with both right wing and left wing advocates of Big Government who do not strictly interpret the Constitution - they both see "good things" they can do with federal power - and ignore the Constitution's limitations. This results in the federal government getting bigger and bigger, and it has been disastrous for our culture of life.

For example, murder is a state, not a federal matter. Louisiana defines 1st and 2nd degree murder differently than Indiana. Each state reserves the right to have, or abolish, capital punishment. Washington has no more right to mandate the death penalty in Massachusetts than it does to abolish it in Texas. Do-gooders on both sides will always try to use the federal government to unconstitutionally seize state and local power.

The powers enumerated to the federal government, and delegated to each branch, are specific, and limited - by design of our founders.

Peter said...

Yeah, I get it. As I said, that is the way it's interpreted by Scalia, and Thomas, and Roberts. The kind of judges supported by McCain and Bush. What more do you want?

The BIG difference between the
"right wing" (pejorative) and the left wing is that the one wants the babies to live, while the others doesn't. THAT's the issue that separates them.

Father Hollywood said...

As a post-script, there is a way that abolition of abortion can indeed become a federal issue - the very same way slavery was abolished in all the states by the federal government - by constitutional amendment.

In 1865, there was still enough respect for the Constitution (and surprisingly so!) that federal abolition of slavery in the states (which is nowhere granted to any branch of the federal government by the Constitution) was done by the states and the people granting Congress that authority by amending the Constitution.

If an amendment was needed to abolish slavery, the same is true for abolishing abortion. That is the only way the matter is a federal matter. And sometimes it should be (hence the ability for us to amend, rather than simply "interpret" novelties into by clever readings, the Constitution).

If we pro-lifers want to both follow the law of the land and find a constitutional way to protect life at the federal level, we can support the proposed Human Life Amendment. Leaving the abortion issue in the hands of highly politicized justices and federal judges (which the Constitution doesn't grant them anyway) is, and has been, a formula for holocaust.

Peter said...

Well, ok. let's work on the amendment. You'll have a lot of Republicans on your side . . ., and if a few LA Democrats want to join us, all the more power to them.

Scott Diekmann said...

Many people want to treat the Bible as a "living document" as well. Interpret it to mean whatever your culture would have it say.

Father Hollywood said...


Why is "right wing" pejorative and "left wing" not? I would think the terms "left" and "right" have less baggage than "conservative" and "liberal." What terms do you prefer, and I'll be happy to use whatever lexicon you prefer.

For the record, I consider myself a right winger - to the point where I find the GOP to be leftist. I don't find "right wing" to be a pejorative term in any way, nor do I mean it that way.

And yes, we right wingers want babies to live. But allowing the federal government unconstitutional entree into the matter has not been good. That's the point. The Constitution gives the federal government no power over the issue. There is a right way and a wrong way to do it. Why do you want to play by the left wing's rules? I thought the Right was against "judicial activism".

Father Hollywood said...


I know you find this incredulous (we've discussed this before), but it is absolutely true - we have match-ups in the South that pit pro-life Democrats against pro-abortion Republicans. It happens - though more in rural areas. There are also times when the only names on the ballot in the general election are Democrat (we don't have write-in privileges in LA).

It goes back to Reconstruction - in which left-wing Republicans were foisted on a disfranchised right-wing Democratic electorate. Though it is changing, there are still places in Dixie where a Republican has never been elected except at bayonet point.

When it comes to supporting life issues - I think we should rally with anyone to support the HLA amendment - even the non-Christians and the Feminists for Life. And if opposition to abortion is important to us (as it should be), we should also denounce "pro-choice" Republicans - no matter how "conservative" or otherwise useful they are for the Party.

Father Hollywood said...

Dear Scott:

Postmodernism is as incompatible with the Church and the Bible as it has proven itself to be with the Republic and the Constitution. The result in both cases is diabolical and plays out in death.

Peter said...

The babies probably wouldn't care what way we saved them. Even the wrong way would be the right way in my book. But, as I say, both Mcain and Bush have supported judges who see it your way. So, be happy and vote for McCain.

And, yes, "right wing" and "left wing" are both pejorative. The major media outlets use the term "right wing," but never "left wing." It's a way of branding someone as an extremist. But, if you were unaware of that, that's fine. And that's not my personal lexicon, it's the way things are.

From personal experience, libertarians like to see themselves above the fray of the right wing and the left wing. But, you've proven me wrong. Mea culpa.

And, yes, btw, I think of the constitution as a document that is definitely NOT living. So, by all means, let's pass the amendment.

Father Hollywood said...

Dear Peter:

Indeed, a baby about to be aborted wouldn't even mind if a bomb planted by Eric Rudolph saved his life. But that would be a rather short-term gain, and may even result in more deaths down the road.

There is a right way and a wrong way. The legitimate way should always be our goal.

I honestly believe allowing the federal government any say on this matter apart from proper constitutional channels (i.e. the caprice of politically appointed justices) has been deadly for millions of children. We on the Right ought not play on our opponents' turf.

If the Constitution were being followed, Roe v. Wade - which occurred while a Republican was seated as president - would never have happened.


I think the reason a lot of people who put liberty at the center of their politics eschew the traditional terms is because they (the terms) have become imprecise. "Liberal" today means the diametric opposite of what it did a century ago. "Conservatism" according to George Bush and John McCain is certainly different than the "Conservatism" espoused by Robert Taft and Barry Goldwater (or G.K. Chesterton or Edmund Burke for that matter).

I would certainly describe myself as "conservative" or "right wing", though I would also accept the label "liberal" if used in its classical sense. "Libertarian" is okay too, but I'm not a member of the LP.

I believe in limited government and states rights. I believe in peace, freedom from foreign entanglements, free enterprise, freedom to trade and travel, personal liberty, and fiscal responsibility. I believe centralization and big government solutions have proven themselves to be failures - even when the goals have been admirable.

And I also find that a strict following of the Constitution achieves all of these.

So, whatever label works here is fine by me. But I have to admit being a little cranky on the terminology - which is always changing to adapt to political correctness. The rascally libertarian gadfly Dr. Walter Williams declared that he was tired of changing. He was originally colored, then he turned black, then Afro, and then the Powers That Be turned him into an African American. He decided to stop the wheel on "black" and refused to be called more trendy terms.

As you can imagine, I like Williams (I once presented him an award from the Sons of Confederate Veterans, which I understand is hanging in his office). I awarded him in Philadelphia for his support for state secession. Interestingly, but not surprisingly, his ancestors supported the Confederate cause.

Maybe "small 'r' republican" is a good way to go - since I'm all for restoring the Republic - with or without the GOP's help.

Moreover, it is my opinion that Carthage must be destroyed. ;-)

Peter said...

Yeah, I like Walter Williams too.