Do We Have
A Living
Constitution?
"Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon them collectively, as well as individually; and no presumption or even knowledge of their sentiments, can warrant their representatives [the executive, judiciary, or legislature]; in a departure from it prior to such an act." - Alexander Hamilton
In the first of the eighty-five "Federalist Papers," Alexander Hamilton emphasized that:
"... it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection or choice, or whether they are forever destined to depend for their political constitutions on accident and force."
The Framers knew that the passage of time would surely disclose imperfections or inadequacies in the Constitution, but these were to be repaired or remedied by formal amendment, not by legislative action or judicial construction (or reconstruction). Hamilton (in The Federalist No. 78) was emphatic about this:
"Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon them collectively, as well as individually; and no presumption, or even knowledge of their sentiments, can warrant their representatives in a departure from it prior to such an act."
The Congress, unlike the British Parliament, was not given final authority over the Constitution, which partly explains why the judicial authority was lodged in a separate and independent branch of government. In Britain the supreme judicial authority is exercised by a committee of the House of Lords, which is appropriate in a system of parliamentary supremacy, but, although it was suggested they do so, the Framers refused to follow the British example.
The American system is one of constitutional supremacy, which means that sovereignty resides in the people, not in the King-in-Parliament; and the idea that the Constitution may be changed by an act of the legislature--even an act subsequently authorized by the judiciary--is simply incompatible with the natural right of the people to determine how (and even whether) they shall be governed.
Unlike in Britain where, formally at least, the queen rules by the grace of God (Dei gratia regina), American government rests on the consent of the people; and, according to natural right, the consent must be given formally. In fact, it must be given in a written compact entered into by the people. Here is Madison on the compacts underlying American government:
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"Altho' the old idea of a compact between the Govt. & the people be justly exploded, the idea of a compact among those who are parties to a Govt. is a fundamental principle of free Govt.
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"The original compact is the one implied or presumed, but nowhere reduced to writing, by which a people agree to form one society. The next is a compact, here for the first time reduced to writing, by which the people in their social state agree to a Govt. over them." (In a letter to Nicholas P. Trist, February 15, 1830)
Neither civil society (or as Madison puts it, "the people in their social state') nor government exists by nature. By nature everyone is sovereign with respect to himself, free to do whatever in his judgment is necessary to preserve his own life - or, in the words of the Declaration of Independence, everyone is endowed by nature with the rights of life, liberty, and the pursuit of a happiness that he defines for himself. Civil society is an artificial person (constituted by the first of the compacts), and it is civil society that institutes and empowers government. So it was that they became "the People of the United States" in 1776 and, in 1787-88, WE, THE PEOPLE ordained and established "this Constitution for the United States of America."
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.
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What THE PEOPLE were not permitted to do in 1787-88 was to deprive - or pretend to deprive - posterity of their natural right to do in the future what the founding generation had done in 1776. Nor could they, by pretending to delegate it to Congress, the President, or the Supreme Court, deprive them of their sovereign power to change the Constitution. Instead, that power was recognized in the Constitution's provisions in Article V.
The Framers had designed a constitutional structure for a government which would be limited by that structure - by the distribution of power into distinct departments, a system of legislative balances and checks, an independent judiciary, a system of representation, and an enlargement of the orbit "within which such systems are to revolve" And to the judges they assigned the duty, as "faithful guardians of the Constitution," to preserve the integrity of the structure, for it is by the structure (more than by "parchment barriers") that the government is limited. It would he only a slight exaggeration to say that, in the judgment of the Founders, the Constitution would "live" as long as that structure was preserved.
The Enduring American Constitution
Now, almost 200 years later, one can read Hamilton's words in Federalist No. 1 and conclude that, under some conditions, some "societies of men" are capable of "establishing good government," but that most are not. This is not for lack of trying; on the contrary, constitutions are being written all the time - of some 164 countries in the world, all but a small handful (seven by the latest count) have written constitutions - but most of them are not long-lived.
In September 1983, the American Enterprise Institute sponsored an international conference on constitution writing at the Supreme Court of the United States; some twenty-odd countries were represented. With the exception of the Americans, the persons present had themselves played a role - in some cases a major role - in the writing of their countries' constitutions, most of them written since 1970. Only the constitution of the French Fifth Republic predated 1970; and the Nigerian, so ably discussed and defended at the 1983 conference by one of its own Framers, had subsequently been subverted, much as the four previous French republican constitutions had been subverted. It would seem that many peoples are experienced in the writing of constitutions, but only a few of them - conspicuous among these the people of America - have an experience of stable constitutional government. In that sense, we surely have "a living Constitution." That is not, however, the sense in which the term is ordinarily used in the literature of constitutional law as shall be explored herein.
Treating The Constitution As
A Thing Without Form or Substance:
New Definitions Of 'Living'
In the language of many today, a "living Constitution" is not first of all one that is long-lived; rather, its longevity is a secondary or derivative quality which is attributed to its "flexibility" or better, its "adaptability." It is this quality--"adaptability"-- that allows it to be "kept in tune with the times," as the members of this school of thought sometimes say. According to them, a living Constitution is first of all a protean constitution - one whose meaning is not fixed, but variable.
In this respect, it is similar to the Constitution as understood by the "judicial power" school. Some judicial power advocates go so far as to say that, until the judges supply it in the process of adjudication, the Constitution has no meaning whatever. Here are the words of judge Lynn D. Compton of California, writing in 1977 in the pages of the Los Angeles Times:
"Let's be honest with the public. Those courts are policy-making bodies. The policies they set have the effect of law because of the power those courts are given by the Constitution. The so-called "landmark decisions" of both of U.S. Supreme Court and the California Supreme Court were not compelled by legal precedent. Those decisions are the law and are considered "right" simply because the court had the power to decree the result. The result in any of those cases could have been exactly the opposite and by the same criteria been correct and binding precedent.
"In short, these precedent-setting policy decisions were the products of the social, economic and political philosophy of the majority of the justices who made up the court at a given time in history .."
So extreme a view of judicial power is not likely ever to be expressed in the official reports; there (perhaps in order to be dishonest with the public) even the most inventive judge will claim to be expounding the Constitution, if not its explicit provisions then, at least its emanations, penumbras, or lacunae (Griswold v. Connecticut). What is of interest is that a judge should be willing to express it anywhere - for what it means is that a constitutional provision can be interpreted, but not misinterpreted, construed but not misconstrued. More to the point here is that it means that the Constitution is a living charter of government only because it is repeatedly being reinvented by the judiciary.
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"Creating" Constitutional Rights and Dworkin's Influence
The 'Living Constitution' school and the 'Judicial Power' school may be indistinguishable at the margins, but they derive from unrelated and distinct sources. 'Judicial Power' is a product or an extension of legal realism, the school of thought whose advocates, from the beginning of the twentieth century, have argued that the essence of the judicial process consists not in interpreting law, whether statute or constitutional, but in making it. Its advocates today speak with a certain nonchalance of "creating" constitutional rights (Moore v. City of East Cleveland), and, when pressed to cite their authority for doing so are likely to point to the work of contemporary legal theorists like Ronald Dworkin and his book Taking Rights Seriously . It is Dworkin who has purportedly given this sort of "constitutional lawmaking" what it has always lacked a philosophical underpinning. As he sees it, rights cannot be taken seriously until there has been "a fusion of constitutional law and moral theory," and to make it clear that he is not referring to any particular moral theory that may have informed the Constitution as written, he finishes that sentence by saying that that fusion "has yet to take place."
As it turns out, however, the moral theory he propounds, and which he hopes to "fuse" with constitutional law, proves to be nothing more than a fancy way of justifying what the judge Comptons among us have been doing all along. And what they have been doing is, essentially, treating the Constitution as a thing without form or substance, except insofar as it authorizes the judges to give it substance.
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The 'Living Constitution' School's Distortion of Marshall
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. 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.
They were under no illusions that this would prove to be an easy task. Nevertheless, they had reason to believe that they had written a constitution that deserved to endure and, properly guarded, would endure. Hence, Madison spoke out forcefully against frequent appeals to the people for change. Marshall had this Madisonian passage in mind when, in his opinion for the Court in Marbury, he wrote:
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"That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental: and as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent."
At this point, it is well to remember Hamilton's strong warning about unwarranted presumptions by those in government of a power to depart from the people's established form as quoted in the title of this essay.
Marshall referred to the "principles" which he called "permanent," and the "basis on which the whole American fabric has been erected" Yet Marshall also chose to address the much broader issue of the general scope of the national powers. The Constitution must be construed to "...allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people." It is these powers, not the Constitution, which are flexible and adaptable to meet the crises of "human affairs."
Ironically, the very case cited by the "living Constitution" school, when properly read, demonstrates that John Marshall, at least, saw, no need for flexibility in the Constitution.
Summary: Do We Have A Living Constitution?
What has been undertaken here has been providing (within a very brief compass indeed) an accurate statement of the principles underlying the American Constitution: pointing to (but by no means elaborating) the political theory from which they derive and the constitutional conclusions to which they lead. Among the latter is the untenability of the proposition that constitutional limitations can be jettisoned, constitutional power enhanced, or the constitutional division of powers altered, by means other than formal constitutional amendment.
It will not be argued that it may sometimes be convenient to allow the Senate to originate a bill "for raising revenue," but convenience is not a measure of constitutionality. There is much to be said in favor of the legislative veto - Who would, in principle, deny the need of checks on administrative agencies? - but, as the Supreme Court correctly said, the Framers anticipated that Congress might find reason to employ such devices and, when designing the so-called "presentment clause" in Article 1, Section 7, forbade them ( Immigration and Naturalization Service v. Chadha). And from a particular partisan perspective it is understandably frustrating, simply because the required number of states had not yet ratified the Equal Rights Amendment, to be denied the power to promote the cause of sexual equality; but frustration alone cannot justify a judicial attempt to preclude the necessity of formal ratification, as Justice Brennan is said to have wished to do. In Frontiero v. Richardson (411 U.S. 677, 1973) the Supreme Court was divided on the issue of whether sex, like race, should be treated as a suspect classification. We are told that Justice Brennan circulated a draft opinion in which he proposed to declare classification by sex virtually impermissible and that he knew this would have the effect of "enacting" the pending ERA. "But Brennan was accustomed to having the Court out in front, leading any civil rights movement," a major publication stated. Hence, we are further told, he saw "no reason to wait several years for the states to ratify the amendment." No reason, that is, other than the fact, which Brennan implicitly acknowledged, that the Constitution as then written, and which had not yet been rewritten by the only people authorized to rewrite it, did not support the role he would have the Court hand down.
Those who would use "convenience" or "frustration" as reason, or who insist that it lies within the powers of the Court (or the Congress or the Executive) to effect constitutional change, can be charged with a lack of respect for the principles on which, as Marshall wisely observed: "the whole American fabric has been erected."
We are told that it is unreasonable - even foolish - to expect that the Framers could have written a Constitution suitable alike for a society of husbandman and a society of multinational corporations, to say nothing of one as well adapted to the age of the musket and sailing ship as to the age of intercontinental nuclear-tipped missiles. As the problems have changed, the argument goes, so must the manner in which they are confronted and solved, and the Constitution cannot be allowed to stand in the way. Indeed, there is no reason to allow it to stand in the way, we are told, because the Framers intended it to be flexible. And we are told that John Marshall would support this position. But it was Marshall, in McCulloch v. Maryland, who stated: "Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported." The United States, in this view was not intended to be a simple society of husbandmen, and Marshall Clearly saw that the Constitution empowered Congress to do what was required to meet the crises of the Republic, and to maintain the Constitutional structure intended by the Framers, changing it only when such change would be in keeping with the structure itself.
That the American Constitution is long-lived, has enduring qualities, and was intended for the ages cannot be doubted. That it was founded on enduring principles, and that it was based on the authority of a people who are sovereign has been attested to by many of its leaders. That it can be changed when, and if, the people ordain such change is a part of its own provisions. For these reasons, it can be said to be a "Living Constitution" - but let that not be claimed by those who would use the language to subvert the structure.
Our Ageless Constitution - Part VII (1987) (Publisher: W. David Stedman Associates; W. D. Stedman & La Vaughn G. Lewis, Eds.) ISBN 0-937047-01-5 (Essay adapted by Editors for publication in this Volume in consultation with Dr. Walter Berns from Berns' article by the same title in National Forum, The Phi Kappa Phi Journal, Fall 1984)