Recently I spent some time with a person I respect highly who is very intelligent, and who has thought about and reached conclusions concerning America’s Constitution. This person, who is representative of many others, believes that a document written hundreds of years ago is meaningless in today’s America. He cited the fact that many of the Framers were slave owners, they could not have imagined a nation of hundreds of millions, they could not foresee the technologically rich environment we call home, or the diverse population that now constitutes the body politic.
None of the things cited above can be refuted because they are all true.
First of all, what is a constitution? A constitution organizes, distributes and regulates the power of the state. A constitution sets out the structure of the state, the major state institutions, and the principles governing their relations with each other and with the state’s citizens.
So, why do we have a written constitution, and does this written constitution still matter?
When the American Revolutionaries broke free from Great Britain, they wanted to build their new nation on a solid foundation. They most assuredly did not want what they had just rebelled against, a monarchy or an unlimited government.
Did the British have a constitution? In the Eighteenth Century, just as it is now, Britain is unusual in that it has an ‘unwritten’ constitution: unlike the great majority of countries there is no single legal document which sets out in one place the fundamental laws outlining how the state works. Britain’s lack of a ‘written’ constitution can be explained by its history. In other countries, many of whom have experienced revolution or regime change, it has been necessary to start from scratch or begin from first principles, constructing new state institutions and defining in detail their relations with each other and their citizens. By contrast, the British Constitution has evolved over a long period of time, reflecting the relative stability of the British polity. It has never been thought necessary to consolidate the basic building blocks of this order in Britain. What Britain has instead is an accumulation of various statutes, conventions, judicial decisions and treaties which collectively can be referred to as the British Constitution. It is thus more accurate to refer to Britain’s constitution as an ‘uncodified’ constitution, rather than an ‘unwritten’ one.
The British Constitution can be summed up in eight words: What the monarch in Parliament enacts is law. This means that Parliament, using the power of the Crown, enacts law which no other body can challenge. Parliamentary sovereignty is commonly regarded as the defining principle of the British Constitution. This is the ultimate lawmaking power vested in a democratically elected Parliament to create or abolish any law. Other core principles of the British Constitution are often thought to include the rule of law, the separation of government into executive, legislative, and judicial branches, and the existence of a unitary state, meaning ultimate power is held by ‘the center’ – the sovereign Westminster Parliament. In other words, there is neither check upon nor balance to the power of the government. The entire shape, form, and substance of the government can change at any time by a simple majority vote of Parliament. To sum up: the British Constitution is a living document.
This is what caused the revolution. If you look at the list of particulars that are in the overlooked or forgotten part of the Declaration of Independence, you see that many of these individual charges against the monarch as the representation of the government are changes made by arbitrary and unilateral acts of Parliament.
- He has refused his Assent to Laws, the most wholesome and necessary for the public good.
- He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
- He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
- He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
- He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
- He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time (sic) exposed to all the dangers of invasion from without, and convulsions within.
- He has endeavoured (sic) to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
- He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
- He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
- He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
- He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
- He has affected to render the Military independent of and superior to the Civil power.
- He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
- For Quartering large bodies of armed troops among us
- For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States
- For cutting off our Trade with all parts of the world
- For imposing Taxes on us without our Consent
- For depriving us in many cases, of the benefits of Trial by Jury
- For transporting us beyond Seas to be tried for pretended offences
- For abolishing the free System of English Laws in a neighbouring (sic) Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies
- For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments
- For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever
- He has abdicated Government here, by declaring us out of his Protection and waging War against us.
- He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
- He is at this time transporting large Armies of foreign Mercenaries to compleat (sic) the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
- He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
- He has excited domestic insurrections amongst us, and has endeavoured (sic) to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.
The colonists tried to follow the procedures as they knew them to find relief within the system. But they were ignored and baffled as the system kept changing. They describe their experience dealing with the shifting sands of their revered living document in the following words.
In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.
Nor have We been wanting in attentions to our Brittish (sic) brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.
It was because of this failed effort to deal with a system that has no solid structure, a system that can change at the will of a simple majority that the Framers were determined to set our new nation on the solid rock of a written constitution. What did the Founders and Framers have to say?
George Washington said, “The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution, which at any time exists, ‘till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. … If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed.”
Thomas Jefferson said, “Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction. … If it is, then we have no Constitution.”
James Madison said, “Can it be of less consequence that the meaning of a Constitution should be fixed and known, than a meaning of a law should be so?”
This is what we were founded upon and this is the philosophical underpinning for the originalist view of the constitution as championed by the late Supreme Court Justice Antonin Scalia.
What do the leading lights of the living document side of the argument have to say?
Woodrow Wilson said, “Living political constitutions must be Darwinian in structure and in practice. Society is a living organism and must obey the laws of life, not of mechanics; it must develop. All that progressives ask or desire is permission—in an era when ‘development,’ ‘evolution,’ is the scientific word—to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine.”
FDR said, “The United States Constitution has proved itself the most marvelously elastic compilation of rules of government ever written.”
Supreme Court Justice Felix Frankfurter said, “The words of the Constitution … are so unrestricted by their intrinsic meaning or by their history or by tradition or by prior decisions that they leave the individual Justice free, if indeed they do not compel him, to gather meaning not from reading the Constitution but from reading life.”
Supreme Court Justice Thurgood Marshall said, “I cannot accept this invitation [to celebrate the bicentennial of the Constitution], for I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention … To the contrary, the government they devised was defective from the start.”
Supreme Court Justice Antonin Scalia summed up the end result of more than a century of Progressive constitutional stretching. “If we’re picking people to draw out of their own conscience and experience a ‘new’ Constitution, we should not look principally for good lawyers. We should look to people who agree with us. When we are in that mode, you realize we have rendered the Constitution useless.”
Or to put it another way, the Progressive’s living document has gone a long way to changing the Constitution from something carved in stone to a mirage written in the sand. So why do we have a written constitution? In my opinion, we need a written constitution so that the government cannot change the social contract with the wave of its hand or the passage of thousand page bills no one even reads.
So why do we have a written constitution?
To keep demagogues and tyrants from arbitrarily changing the rules by which we live. If you think this has worked, see my book The Constitution Failed. As a professor of political science and as the director of one of the largest political science departments at any university, I have long advocated that the study of the Constitution should be moved from political science to history because it has become merely an historical document, and now has little to do with how our country is administered by the political class.
Does it still matter? Only if the citizens of this nation have the fortitude to rise up and demand that it matters.
Keep the faith. Keep the peace. We shall overcome.
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