The idea that the Constitution is a "living document" is patently absurd to me, and I have a hard time comprehending why anyone of any intellectual rigor would take such a position seriously and genuinely. The whole reason we write ideas down instead of transmitting them verbally is so that we can ensure that they don't change over time without consensual and purposeful action.

When it comes to contracts and other legal documents that represent agreements between parties -- such as the Constitution of the United States of America which is an agreement among the various states -- it is essential that the common understanding of the agreement remain fixed. Most contracts, including the Constitution, provide instruments whereby the agreement can be changed with the consent of the parties involved. For example, the terms of my home mortgage can be changed if the lender and I agree to the changes unanimously. In the case of the Constitution, unanimity is not required; instead, only three-quarters of the parties involved (the states) must agree to an amendment proposed by two-thirds of Congress or two-thirds of the state legislatures in order for the amendment to be accepted. This is not an easy process, nor was it meant to be, nor should it be.

It is unfair and illegal for federal judges to change the meaning of the Constitution. Federal judges are charged with applying the Constitution and the laws passed by Congress to specific cases brought before them. They are unelected, and their opinions do not inherently represent the will of the people or the states in the way that the opinions of our elected legislators, congressmen, and President do. Judges have no mandate to ascertain the desires of the populace or to account for "evolving standards". They are charged with the task of simply evaluating individual cases within the framework of the agreement binding the various states. It is for the states to decide when and how they want to adjust their common agreement, and it is only through the amendment process that such a change can be made.

No one would take it kindly if the meaning behind their mortgage or employment contract changed whimsically according to "evolving standards", and we should settle for no less precision when it comes to our national organizing agreement. The Constitution is not the collection of judicial interpretations, and despite the power it has assumed for itself over the centuries the Supreme Court is not the all-powerful arbiter of Constitutionality. I am not a lawyer and I cannot speak with authority as to the current condition of our country, but my arguments from first principles are clearly logical and far more elegant than the amorphous blob that is our current body of Constitutional law.

Douglas Wilson points out that such a structure is not actually "living" at all, but merely "dead and malleable". Justice Scalia agrees that the Constitution should not be reinterpreted (HT: The American Constitution Society), and he also pointedly asked why any American would want his country run by nine lawyers.

In a 35-minute speech Monday, Scalia said unelected judges have no place deciding issues such as abortion and the death penalty. The court's 5-4 ruling March 1 to outlaw the juvenile death penalty based on "evolving notions of decency" was simply a mask for the personal policy preferences of the five-member majority, he said.

"If you think aficionados of a living Constitution want to bring you flexibility, think again," Scalia told an audience at the Woodrow Wilson Center, a Washington think tank. "You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility."

"Why in the world would you have it interpreted by nine lawyers?" he said.

(HT: McQ.)

As for the recent filibuster controversy, the actions of 51 senators are far more democratic and representative of the will of the people than are the opinions of any number of federal judges -- particularly when the senators act well-within the powers granted to them by the text of the Constitution.



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