Living Constitution is Antithetical to Democracy.

It is tempting to espouse a “living constitution.” After all, no one likes their constitution to be dead. Under the Living Constitution, this founding document can adapt to our dynamic society. Chief Justice Earl Warren quite eloquently wrote that any interpretation of the Constitution must “draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Inspiring indeed!

As flowery as the philosophy sounds, it directly contradicts the most fundamental principle of our government: power derives from the people. Our constitution makes clear that the power to pass laws be endowed to Congress. Under a Living Constitution, however, the judiciary can take that power away from Congress and vest it in themselves. Judges can reduce our constitution to a mere set of guiding ideals. Under those gauzy principles, the court can deflect from what the Constitution says and instead decide what the Constitution ought to say.

This judicial philosophy is repugnant to any democracy, especially one that considers itself a city upon a hill. There is no reason why nine justices, instead of Congress, ought to have the final say in how to mold the Constitution in light of changing times. Although all nine members of the Supreme Court are competent in the law, they are no more equipped than an average American to answer grandiose philosophical questions. There is no reason to believe that these justices, confined in a rather monastic circle in Washington D.C., can decipher the will of either a California or a Texan. Instead, Congress, which replies to the American public, is alone equipped to decide what laws ought to be.

This isn’t to argue that the rights granted in the Constitution are constricted only to the original sins it aimed to protect from. Justice Louis Brandeis wrote, “Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken.” I heartily concur with that wisdom. In the context of Justice Brandeis’ quotes, for example, the Supreme Court ought not to greenlight wiretapping simply because it did not exist in 1787. Instead, a reasonable reading of the Fourth Amendment requires judges to declare wiretapping unconstitutional (as it intrudes on citizens’ rights to be secure from unreasonable searches in their persons, houses, papers, and effects).

Opponents of the Living Constitution, however, don’t contend that rights can’t include new phenomenons. Even the most ardent originalists, apply old rights to new scenarios. Justice Scalia, in Kyllo v. United States, wrote that thermal devices — used to detect marijuana homes — violate the Fourth Amendment. While such technology didn’t exist at the time of the Constitution’s adoption, a fair reading of the text rejects an approbation of thermal devices.

However, the most contentious of legal issues existed in 1787. Looking at the original meaning of the Bill of Rights, for example, it is clear the U.S. Constitution did not forbid capital punishments. The Fourteenth Amendment prescribes no person be deprived of life, liberty, or property without due process of law. A natural reading of the clause tells us that life may be in jeopardy if the defendant received a fair trial. While many (including myself) believe the death penalty is an atrocious disgrace to a humane society, it would be dishonest to say we should expect the courts to amend that. Instead, it is squarely within Congress's prerogative to pass laws forbidding the death penalty. Those similarly against the death penalty ought to use the power of the ballot box and vote in representatives matching the voters’ paradigms.

The Living Constitution has also been adopted by the right. Conservatives have similarly used the Living Constitution as a facade to push through their agendas. For instance, it is conspicuous what the Confrontation Clause meant at the time of the Constitution’s adoption: a defendant ought to have a right to be “confronted with the witnesses against him.” Yet, in Maryland v. Craig, the Supreme Court held that a face-to-face engagement with a witness is not absolute. It is wholly plausible that confronting the witness is a bad idea. However, that is not what the Constitution commands. If the goal is to amend the clear text of the document, the Constitution itself prescribes the route: passage by two-thirds of both houses and ratification by three-fourths of states. Again, the ball is in the people’s court.

We ought to stop expecting the judiciary to prescribe new meaning to our constitution. Besides being ill-equipped to answer grand philosophical questions about natural rights, it also puts in danger the public’s deference to the courts. Neither liberals nor conservatives trust nine judges to be the final arbiter of whether there ought to be a right to suicide or a right to bear assault weapons.

Originalism is by no way popular. Given the current gridlock, it is easier to legislate from the bench and not the Capital. Recent examinations of judicial confirmations shed light on this unfortunate development. Senators ask political questions: “Justice X, do you believe that Y should be in the Constitution? No? Well, I and my constituents do and therefore you will not have my vote.”

If America was to go down this unprincipled route, I would suppose that politicization during confirmations is a necessary evil. If the Constitution can stretch or shrink to fit a justice’s policy preference, I would rather the people have a say. The 100 Senators, better than Justice X, can better ascertain whether the Constitution ought to include a right that the country values.

The Living Constitution is nothing but a wolf in sheep’s clothing. Politicalization would at least strip the sheep clothings away.



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