Constitutional Opinions

The Mr. Potato Head Constitution

With the Sotomayor nomination comes an old question: Is the U.S. Constitution a "living document"?

By 6.4.09

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As Senate hearings gear up for Supreme Court nominee Sonia Sotomayor, an old question is again current: Is the U.S. Constitution a "living document"?

Justice Oliver Wendell Holmes first popularized the idea of the Constitution as protean organism in a 1920 Supreme Court case, Missouri v. Holland. There he argued that judges should have broad interpretative latitude in their efforts to keep the Constitution relevant to an evolving society.

Seven years later, in Buck v. Bell, Justice Holmes helped clarify just how much latitude he had in mind when he discovered a constitutional right to forcibly sterilize what would eventually be tens of thousands of Americans -- many of them poor blacks deemed unfit to breed.  

Despite the sorry pedigree of the living-document trope, many others over the ensuing decades continued defending it, including Supreme Court Justice Thurgood Marshall on the 200th anniversary of the Constitution.

In the 2000 presidential campaign, Al Gore went one better, promising to appoint judges "who understand that our Constitution is a living and breathing document." With the additional adjective Gore managed to transform an appealing talking point into something redolent of a '30s horror movie: "It's breathing! It's ALIVE!"

Sadly for judicial conservatives, Gore's fellow travelers retreated from his verbal innovation, and once again we were faced with the old problem: How to respond to appealing talk of a living constitution.

I mean, think about it. What's the effective response? "No, it's dead, damn it!"? 

If you're a prominent conservative with a weakness for this retort, know that they will find you. They will place you in a national television news studio. They will neglect to powder your possibly balding forehead. Then they will roll the cameras. They will use you as a weapon against the very thing you love.

"It's dead!" is a non-starter rhetorically. And it's false. In a figurative but important sense, our Constitution is a living document. When the American founders gathered to compose and sign it 222 years ago, they were gambling that the principles of liberty they fought for could be passed on from one generation to the next as a living legacy of freedom. And that hope was not misplaced. If the Constitution were already dead -- not just battered and abused -- judicial activists wouldn't need to move against it incrementally and with all manner of rhetorical legerdemain. They wouldn't need to go on pretending that they were actually striving to faithfully interpret its meaning.

This brings us to the central irony. The very people most inclined to gush about our "living Constitution" treat it like a Mr. Potato Head:

Ooh, states rights. Let's pop that off and replace it with a metastasizing Commerce Clause. Oh, and look here in my pocket. A constitutional right to redefine the age-old institution of marriage. Oh and let's tack this one on, too -- a constitutional right to kill a half born baby and throw whatever's left in the garbage. If anyone complains, we'll call it "the constitutional right to privacy."

It's time to pause and take the living-document metaphor seriously. Living things have an internal logic, have functional constraints. They aren't endlessly malleable. You can't replace grandpa's liver with a second heart just because you think livers are passé -- unless you intend to kill grandpa.

Our living constitution has and will continue to evolve, but if it's to remain alive, it must do so according to the internal logic, the functional constraints, woven into it from the beginning -- namely, the constitutional amendment process. What our founders intended -- and what our president swore to preserve, protect, and defend -- is an amendment process that demands input from American voters and their elected representatives. It accommodates the present while respecting the past.

It does not involve activist judges -- unaccountable to the American voter -- speaking in reverential tones about "a living Constitution" while slowly dismembering its meaning as part of an elaborate word game. This is deconstruction -- nihilism. It's where living documents go to die.

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About the Author

Jonathan Witt, Ph.D., is a research fellow with the Acton Institute and the author, with Jay Richards, of the upcoming Ignatius Press book The Hobbit Party: The Vision of Freedom that Tolkien Got, and the West Forgot

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