Oh, DEFINITELY it is most helpful! A wonderful resource for this discussion. Thank you so very much!
I particularly resonated to this insight:
In this formal compact THE PEOPLE specified the terms and conditions under which "ourselves and posterity," would be governed: granting some powers and withholding others, and organizing the powers granted with a view to preventing their misuse by the legislative, the executive, and the judicial branches alike. WE THE PEOPLE were authorized by natural right to do this, and were authorized to act on behalf of posterity only insofar as the rights of posterity to change those terms and conditions were respected. This was accomplished in Article V of the Constitution, the amending article, which prescribed the forms to be followed when exercising that power in the future.The Framers were so wise: They did not enchain future generations — the national Posterity — to the decisions made by their ancestors. That is precisely what Article V is all about.
Yet because we can say that the Constitution itself provides for its own modification if/as urged by changes in social and economic reality, by referring the urgent problem of how to deal with these effects to decisions made by the contemporaneous people who actually suffer from such causes, does this define what a "living constitution" is?
The so-called "living constitution" [LC] is a mere term of art designed to mask the fact that the people who comprise the body politic, under the LC regime, are not even consulted with respect to matters that affect them most deeply, most critically, most personally.
Yet to me, the most despicable thing about LC theory, is that it has absolutely no use for the very idea of "posterity."
The reason being: Any reflection regarding the claims of "posterity" must take into account the concept of Life as an intergenerational phenomenon that, from time to time, needs defending by those now living — the progenitors of the posterity that follows.
Just an observation here: The defenders of living constitution theory tend not to be defenders of the principle of life for its own sake. Indeed, the entire purpose of the former is to obliterate the claim that life is valuable, inviolate, for its own sake.
The Framers of the Constitution built for the ages in precisely this sense: They left all needful adaptations of the requirements of the original Constitution, should they hamper the progress of "posterity" due to changing conditions social, political, and economic, to the judgment of the very people themselves, so affected.
But this is the very thing the theorists of the "living constitution" are trying to obviate. In principle.
The "living constitution" is what "we" — I'm here referencing the "opinion" of credentialed experts, not "average" people — say it is. And if you have a different view or opinion of the matter, then you are patently WRONG from the get-go. You may also be immoral or even criminal to hold a point of view that differs from "expert opinion."
Gotta close for now. Thank you so very much for writing, and posting this excellent article!
As for the term, "living constitution," note the section, quoted below, from Dr. Walter Berns' essay about the outright dishonest manipulation of Marshall's words:
"The living Constitution school also claims to have a source more venerable than legal realism or Ronald Dworkin - justice John Marshall. A former president of the American Political Science Association argues that the idea of a " 'living Constitution'...can trace its lineage back to John Marshall's celebrated advice in McCulloch v. Maryland (1819): 'We must never forget that it is a Constitution we are expounding...intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs' " The words quoted are certainly Marshall's but the opinion attributed to him is at odds with his well-known statements that, for example, the "principles" of the Constitution "are deemed fundamental [and] permanent" and, except by means of formal amendment, "unchangeable" (Marbury v. Madison). It is important to note that the discrepancy is not Marshall's; it is largely the consequence of the manner in which he is quoted - ellipses are used to join two statements separated by some eight pages in the original text. Marshall did not say that the Constitution should be adapted to the various crises of human affairs; he said that the powers of Congress are adaptable to meet those crises. The first statement appears in that part of his opinion where he is arguing that the Constitution cannot specify "all the subdivisions of which its great powers will admit;" if it attempted to do so, it would "partake of the prolixity of a legal code" (McCulloch v. Maryland), In the second statement, Marshall's subject is the legislative power, and specifically the power "to make all laws which shall be necessary and proper for carrying into execution" the explicitly granted powers. "Neither Marshall nor any other prominent members of the founding generation can be 'appropriated' by the living Constitution school to support their erroneous views.Sadly, since the 1870's, those forces in America, first self-identifying as "liberals," and now, as "progressives," have used such ruses, semantic maneuvers, and other artful devices in their attempt to destroy the foundations of liberty laid out in the Declaration of Independence and incorporated into the provisions of our written Constitution."Marshall's and the Founders' concern was not to keep the Constitution in tune with the times but, rather, to keep the times to the extent possible, in tune with the Constitution. And that is why the Framers assigned to the judiciary the task of protecting the Constitution as written."
Theirs are not "progressive" ideas. They are, instead, regressive and tyrannical ideas, however they are expressed, and they must be confronted and overcome if liberty for individuals is to be restored.