Please bring back the living Constitution

 One of the fundamentals of rule of law, what separates it from all totalitarian states, is that if a law places a restriction on the citizen, there is a corresponding limitation on the power of the state. You do not have absolute freedom, and the government does not have absolute power.

Simplest example: murder is illegal, but you can't be punished for a murder without the due process of a trial which requires presentation of evidence. The police have the power to gather that evidence, but they must go through the courts to have the right to do so -- by which I mean, they have to present a coherent argument to obtain a search warrant, they can't randomly kick in doors because they have nothing else better to do.

Within the incredibly wide range established by those parameters, many abuses still exist. Example, Abraham Lincoln was the only US President to exercised dictatorial powers, that was during the crisis of the Civil War. After that War, additional restraints which put some specific actions outside the reach of the following Presidents. The downside of that is that every single other unjust and tyrannical thing done in USA history has been done with the co-operation of the Congress, the Courts, and/or the populace, these were injustices without dictatorship.

It is important to remember that though injustice can exist without dictatorship, no just government can exist within dictatorship.

During the Revolution, but before the push for full Independence, the rallying cry was for the preservation of the rights the Colonialists were already living under, but that the mad king of England was trying to subvert. When we achieved our Independence, our boldest break with our English history wasn’t the choice of Democracy (as England was lurching toward that already) but that we drafted a codified Constitution, which England didn’t, and still doesn’t, have. Ours is the oldest Constitution of any still-existing national state.

Oldest, and also the shortest. Less-than 5,000 words long, and in retrospect, it is shocking how many “Constitutional fundamentals” are not explicitly mentioned in it: separation of powers, separation of church and state, limited government, one man one vote, and legislative equality of the two halves of the Congress. (All of those are suggested in the Constitution, except the last, as the original Constitution explicitly states the opposite).

This was mostly intentional. The Constitution was intended as a functional, but also flexible, framework. It was the skeleton, but the muscles and the organs, and the life blood would emerge through trial and error. You were not allowed to violate those 5,000 words (as for the example of the legislative equality of the two halves of Congress, that was not created by a typical law, but a full-blown amendment (number 17), and it is an the intentionally difficult process of actually modifying the original 5,000 words). The drafters established parameters: this far, not farther; but “this far” is plenty far. It is a distance that has served us well considering who we are today vs who we were back then -- to have the full rights of Citizenship you needed to be male, white, largely debt free, owning physical property, and very likely owning slaves.

Reading the book “America’s Unwritten Constitution” by Akhil Reed Amar, I found it remarkable how many of our “fundamentals” were created by one man who was not technically a legislator. George Washington was first President, and so admired that he was elected twice without anyone running against him. The Constitution put restraints on him, but he exercised extraordinary powers none-the-less, something that emerged largely by accident. As both Houses of Congress had responsibilities in their home-states, it was only Washington who was required to treat the Federal Government as a full-time job. He issued Executive Orders, which had the power of law but were not backed-up by legislative process and not an authority that the Constitution granted him. Washington's attitude was, “Listen I’m the guy who has to do this every day, and I’m telling you, things need to happen by this institutional process [the one Washington just made up] or they are unlikely to get done at all.” He generally got what he wanted. So, our document hasn’t just proven flexible as stretched over two centuries, it was hugely flexible in its first ten years.

This is why strict Constitutionalists/Texturalists/Originalists should be dismissed. An Originalist, by definition, violates the original intent of keeping the document flexible; a “living Constitution” as it was described in Conservative-influenced US History textbooks for generations, until the Religious Right demanded we expunge that phrase.

Tom Barber, “That book is probably the most famous textbook in American history. It’s been around since World War I, is updated every year and it had invented the term ‘living Constitution,’ which has been there since the 1950s. But the social conservatives didn’t like its sense of flexibility. They insisted at the ... that the wording change to ‘enduring.’”

Publisher Prentice Hall agreed to the change, and ever since the book — which Barber estimates controlled 60 or 65 percent of the market nationally — calls it the “enduring Constitution.”

Late Supreme Court Justice Anthony Scalia was likely the patron saint of the Originalists, and his philosophy still rules the court; in part because when he died, President Obama was blocked from his right to choose his replacement months before the election, and later, when Scalia's fiercest opponent (and dear friend), Ruth Bader Ginsberg died, and Trump was empowered to replace her during the election itself. Scalia was quite explicit explaining his ideals:

"If you somehow adopt a philosophy that the Constitution itself is not static, but rather, it morphs from age to age to say whatever it ought to say — which is probably whatever the people would want it to say — you've eliminated the whole purpose of a constitution. And that's essentially what the 'living constitution' leaves you with." 

In a different public statement (when he was apparently more annoyed) he famously ranted, "It’s not a living document. It’s dead, dead, dead.”

I'd argue that if the Constitution is dead, so is the Republic. In nature, either you evolve, or you go extinct.

Though this is very much a Supreme Court filled with Scali's children, it must be said, that his children are more radical than he. Abortion rights, the legitimacy of government to implement public health interventions, and enforce environmental protections, were reaffirmed over and over again during his time, but have repeatedly fallen like wheat at harvest time since the Court's Conservative Majority (in place for decades) became a Super-Majority. This new Conservatism is far more hardened than Scalia's once-seeming-radical Originalism. 

Scalia, himself, objected to his collogue Clarnece Thomas' stated desire to overturn prescient willy-nilly and obvious desire to intervene in the administrative and legislative processes (those other two branches of government that the Constitution created).  Said Scalia, "You can't reinvent the wheel. You've got to accept the vast majority of prior decisions. ... I do not argue that all of the mistakes made in the name of the so-called living constitution be ripped out. I just say, 'Let's cut it out. Go back to the good, old dead Constitution ... I am a textualist. I am an originalist. I am not a nut." He even argued that the philosophy of a "living Constitution" put too few restraints on Judicial Activism, while a "dead Constitution" kept judges in their proper place.

Yeah, well, not anymore. I wonder if he's spinning in his grave.