Why We Need a Dead Constitution

Check out this fabulous little essay by Jonah Goldberg on the virtues of a dead Constitution.

Here’s a nice bit:

We’ve all heard about how great living constitutions are. The most extreme, but essentially representative, version of this “philosophy” can be found from the likes of Mary Frances Berry or the Los Angeles Times’s Robert Scheer. They matter-of-factly claim that without a “living” constitution, slavery and other such evils would still be constitutional. This is what leading constitutional legal theorists call “stupid.” The constitutionality of slavery, women’s suffrage and the like were decided by these things called the 13th, 14th and 15th Amendments. Also, contra feminists, women got the vote not through a living constitution but by the mere expansion of the dead one — via the 19th Amendment.

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21 thoughts on “Why We Need a Dead Constitution

  1. It’s impossible. There will always be interpretation, and there’s nothing you can do about it. Don’t fool yourself into thinking that any words have a “plain meaning”. Somebody has to decide what that “plain meaning” is, and then we have a living document.

    Sorry.

  2. the amendment process is how the constitution is a living documnet, what you say makes no sense.

    The “living document” has nothing to do with evolving interpretation.

  3. No, Tlaloc. Evolving interpretation is what makes the constitution a living document. See Oliver Wendell Holme’s opinion in Missouri v. Holland, blah blah blah. Standard high school history stuff.

  4. Uh, no. The ability to continue to change the document makes it a living document. If it had only to do with changing interpretation then every document everywhere would be a living document.

    for instance:
    “A security policy is often considered to be a “living document”, meaning that the document is never finished, but is continuously updated as technology and employee requirements change.”
    http://searchwebservices.techtarget.com/sDefinition/0,,sid26_gci548251,00.html

    Notice the key is that the document is never finished and continues to be updatable. Interpretation has nothing to do with it.

    You are correct that this is a simple matter from High School but you somehow got it wrong, as did Goldberg. Okay that last part isn’t a great shock but I hold anonymous posters to much higher standards than mere National Review editors.

  5. Hehe, good one, Tlaloc. Really.

    To create a substantive change in our government or society, a “living” constitution requires only judicial fiat, the votes of just five people.

    A dead constitution requires 2/3 of both houses of Congress and 3/4 of the states. Many more votes are required.

    As a Democrat, surely you favor obtaining the bigger sample of the consent of the people before we go tearing up the cemetary.

    “Tradition means giving a vote to most obscure of all classes, our ancestors. It is the democracy of the dead…Tradition refuses to submit to the small and arrogant oligarchy of those who merely happen to be walking about. All democrats object to men being disqualified by the accident of birth; tradition objects to their being disqualified by the accident of death. Democracy tells us not to neglect a good man’s opinion, even if he is our groom; tradition asks us not to neglect a good man’s opinion, even if he is our father.”—GK Chesterton

  6. Yeah, you’re wrong on this one (and not only this one), Tlaloc. The whole living constitution thing is a liberal shibboleth for changing the meaning of the document through interpretation. You know, evolving standards of decency, penumbras, and emanations from the text . . .

  7. Because, of course, unlike liberals, conservatives have the magical ability to read the minds of the framers.

  8. I’ll give you an example. There is something in the constitution called the contracts clause. It clearly states that state and local governments may not impair the obligations of contract. There is a clear historical record of what that means. The Supreme Court obliterated the clause saying it conflicted with the “spirit of the founders.” That’s interpreting in such a way as to destroy original meaning.

  9. “To create a substantive change in our government or society, a “living” constitution requires only judicial fiat, the votes of just five people.”

    Thats your way of viewing the situation, but it doesn’t jive with the simple definition of “living document.”

    “A dead constitution requires 2/3 of both houses of Congress and 3/4 of the states. Many more votes are required.”

    No a dead constitution could not be changed. Period. That’s exactly what a “dead” document means. It’s done. Stick a fork in it.

    “As a Democrat, surely you favor obtaining the bigger sample of the consent of the people before we go tearing up the cemetary.”

    I’m not a democrat, don’t slip into binary thinking. Since the role of the Judiciary is to interprete the law I don’t buy your view of the situation.

  10. “Yeah, you’re wrong on this one (and not only this one), Tlaloc. The whole living constitution thing is a liberal shibboleth for changing the meaning of the document through interpretation. You know, evolving standards of decency, penumbras, and emanations from the text . . . “

    Sorry, again no. The judiciary exists explicitly to rule on the law and thus interpret it. You don’t have to like it but for you to confound that with the fact that the constitution is a living document and to claim it is somehow a bad thing is simply false.

    Living document= capable of being updated (in this case through amendment)
    That’s the dictionary definition. Feel free to look it up.

  11. “I’ll give you an example. There is something in the constitution called the contracts clause. It clearly states that state and local governments may not impair the obligations of contract. There is a clear historical record of what that means.”

    That’s your opinion, and you’re entitled to it but that doesn’t make it a fact.

    “The Supreme Court obliterated the clause saying it conflicted with the “spirit of the founders.” That’s interpreting in such a way as to destroy original meaning.”

    Again your personal opinion and perspective, not fact. You have your view, they had theirs. The difference being they were in the position that their view mattered.

    None of which has to do with the constitution being live or dead. Even if it were dead we’d still have to have someone interpret what it means.

  12. Let me make this real easy for you:
    If you want to claim the SCOTUS has been to excessive in how much leeway they give themselves to interpret the law that’s fine. You can make an argument for that point.

    But it has absolutely nothing to do with whether the constitution is a living document or not. Don’t confuse the issues.

    I’m sure there are democrats who also get this issue wrong, but they are just that: equally wrong.

  13. “The simple fact is, what LEGAL SCHOLARS mean and have always meant by calling the Constitution a living document is NOT that it can be amended but that it should be open to interpretations that allow it to be updated by the court instead of the amendment process.”

    Care to back that up with some evidence? This appears to be simply another attempt by those with a political agenda (whether left or right) to redefine established terms as they see fit so as to control the discussion.

  14. Tlaloc, your refusal to admit you’re wrong is really making you look bad. Do your own research, and just quietly walk away from this one. If you want look ignorant by misusing that term, then fine, but I’m not going to continue to argue with you about it, and I’m not going to do your research for you. Ask a high school teacher.

  15. “Tlaloc, your refusal to admit you’re wrong is really making you look bad.”

    This is your response to my asking you to back up your claim? And it makes ME look bad? Okay…

    “Do your own research, and just quietly walk away from this one.”

    Already did. Every reference I can find to a living document (outside of political hacks trying to hijack the constitution for their own aims) explicitly refers to the ability to modify the document as the key. Again feel free to present some support for your side. Or don’t.

    “If you want look ignorant by misusing that term, then fine, but I’m not going to continue to argue with you about it, and I’m not going to do your research for you.”

    🙂
    Ah, yes the “I will make claims and not bother to support them… I mean I won’t do your research for you” line of argument. If you want to make a claim and have it take seriously be prepared to defend it.
    Of course if you wish to be a clown feel free to keep telling me that I look bad for not accepting a random internet poster at his word in the face of contradictory evidence. I’m quite fine with skepticism.

  16. Just for the hell of it I went out an found a bunch of sites that tend to support the definition of “living document” as one that can be modified:

    Step 6: Make it a living document
    This is vital! Make your business plan a living document that you and your staff can frequently update and improve.
    http://www.alexandersloan.co.uk/newsletter/business_matters_winter_2002/sstaebp.html

    The Founding Fathers understood the importance of this document they had written. They knew it embodied within its four corners the basic principles of America. It wasn’t a dead document. It was a living document which could be changed.
    http://marriagelaw.cua.edu/Policy/TestimonySenate/durb071304.cfm

    I wonder if Eric Spratling’s love of a “dead” Constitution (“Bush makes whiny Dems eat their vegetables,” Feb. 25) will change if and when the proposed constitutional amendment banning gay marriage hits the Senate floor. When that happens, he’ll probably be all about amending (read: changing, or something that a “dead” document can’t do).
    http://mattschuh.blogs.com/mws/2004/02/

    This is a living document (oohhh creepy!) that I’ll update as I have new information for you…
    http://www.northamericanmotoring.com/forums/showthread.php?t=35418

    It is plainly that the RVG is a living code. It changes from time to time.
    http://www.airc.gov.au/documents/transcripts/..%5CTranscripts/280201c2001461.htm
    (they also refer to it as a living document)

    Please don’t get us wrong, we don’t think that the Constitution should be easy to change. But when it becomes impossible, then it is no longer a “living document.” It becomes one that in written in stone. The result is that the meaning of any such “dead” document largely depends upon who is interpreting it.
    http://educationwonk.blogspot.com/2004_11_01_educationwonk_archive.html

    I found a number of sites too that confounded interpretation and “living” but strangely enough they were all conservative sites and the weird thing is that a great many of them used exactly the same phrases, verbatim. That makes me think there’s an astroturf political manuever to confuse the issue at work. Probably part of the summer judicial “activism” offensive leading up to the Supreme COurt appointments.

  17. Yer killin’ us, Tlaloc. It’s like being locked in room where a guy keeps switching the light off and saying it’s on. It ain’t on, baby.

  18. “Yer killin’ us, Tlaloc. It’s like being locked in room where a guy keeps switching the light off and saying it’s on. It ain’t on, baby.”

    Dude, Hunter, I’ve provided all the supporting evidence. The people disagreeing with me have offered not one thing to support their position. NOT ONE.

    Really feel free to chime in with something. Anything. But until then….

  19. What’s happening is that those of us having the conversation are using the language of the legal/public policy world and you are using a different, more prosaic language.

    You’re an I.T. guy. Imagine you were talking about coding with some buddies and I kept chiming in with talk about coding in the sense of a Little Orphan Annie alphanumeric codebreaker wheel. Not the same thing.

  20. “What’s happening is that those of us having the conversation are using the language of the legal/public policy world and you are using a different, more prosaic language.”

    That’s fine but the legal/policy world has it wrong. There’s no two ways about this. The phrase has a very specific meaning which apparently policy wonks have screwed up. By virtue of their screwing it up consistently you think that gives it legitimacy. It doesn’t. Policy is not like physics or IT where you are dealing with a substantially different world than the everyday and sometimes need a different vocabulary in order to describe it. Policy has to be rooted in the everyday world and the language that entails.

    Secondly using your definition your argument makes no sense because as has been pointed out every written document is subject to interpretations which means you are drawing a meaning less distinction between living documents (everything ever written) and dead documents (an empty set).

  21. “You’re an I.T. guy. Imagine you were talking about coding with some buddies and I kept chiming in with talk about coding in the sense of a Little Orphan Annie alphanumeric codebreaker wheel. Not the same thing.”

    The difference there is that “code”
    can indeed mean both of those things. This is more like two cardiac surgeons who keep refering to a ventrical as the appendix. No it’s not. The appendix is a very specific thing. It is not and never has been part of the heart. Even if every cardiac surgeon on earth calls it that.

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