Is the US Constitution a Living Document that should change over time?

Is the US Constitution a Living Document that should change over time?
By Will Armstrong


The theory that the Constitution is a “Living Document” has been dominant since F.D.R. tried to pack the Supreme Court in the late 1930’s. The idea of an evolving Constitution has helped to transform our government from a limited one, charged with protecting individual rights, into a Nanny State that promises to take care of all our needs and make all our decisions.

The Judiciary, since the Great Depression, has made laws and created rights based on general statements in the Bill of Rights ignoring specific provisions in the 9th and 10th amendments to limit government functions.

Our Constitution was created to protect our inalienable or God given rights and to prevent arbitrary government intrusion into our lives. By the time the Constitution was written America had been subject to oppressive British rule for two hundred years. Our founding Fathers knew from experience what type of government they wanted to avoid.

The Constitution divided our government horizontally on the federal level into three branches; executive, judicial and legislative and vertically into federal, state and local governments. The purpose was to institute a system of checks and balances to promote accountability and prevent seizure of power by any single branch.

The 9th and 10th amendments purposely enumerates (lists) the specific functions of all branches and levels of government. The purpose being to create a government that is constitutionally limited. The Constitution states that whatever rights and powers are not given to the government are reserved for the people, making it clear that the government is to be a servant not a master to the people.

The concept of The Constitution being a Living document refers to theory that its interpretation needs to evolve as our culture and moral standards change. The central argument being, that how could you directly apply a two-hundred year old legal document to modern times. Two hundred years ago there we’re slaves, women had no voting rights, there we’re no food stamps and abortion wasn’t an issue.

Some proponents of the Living Document, even go on to say that the founders intended the Constitution to evolve as society changed because it was written in general terms thereby leaving room for broad interpretations.

On the surface, the argument for a Living Document sounds reasonable and fair, they reason that they would prefer a “Living document” to its implied opposite, a “dead document” written two hundred years ago by those they consider to be slave owning, sexist, religiously fanatical and wealthy white guys.

The problem with Living document theory is that the final authority for legal decisions are judges not the Constitution. Supreme Court Justices get to decide how and when our morals and culture have evolved or changed. An example of this might be that of an older law prohibiting eighteen year olds from driving a car. Judges may surmise for instance, that because there we’re no seat belts when this law was written that it would be reasonable to amend the law to say that eighteen year olds without seatbelts are prohibited from driving.

We can see from this humorous example how the clear intent of the law was altered by permitting judges to interpret the law based on the evolving cultural times such as is the case with the Living Document theory. A Supreme Court judge can now effectively enact a new law without a vote through court decisions, in addition to their legitimate role of interpreting the law as written. So the judges can now usurp the legislative function of Congress to effectively make laws by judicial fiat. Supreme Court Judges have now evolved into all wise philosopher kings who make our rules for living and who tell us what to think.

Many are not aware that the executive and legislative branches are also charged with upholding and protecting the Constitution. Federal employees, military members, civil servants and Congress all took an oath to support and defend the Constitution. Now if these Supreme Court Justices are the only ones wise enough to understand Constitutions’ meaning what are rest of us swearing to uphold? Something that can be altered at a judges whim? Why wouldn’t it be meant to be understood by all?

As most of us know it takes a two thirds majority in both houses of congress to amend the Constitution. There have only been 17 admendments passed after the first ten in our Bill of Rights we’re passed in 1787. Cooperation of all the branches and levels of government are also necessary to advance new legislation. Also governmental checks and balances along with the enumeration of government powers provides accountability and makes it very difficult to alter our laws. Its no accident that changing or making new laws are cumbersome by design, the founders did that on purpose. Now why would all this be necessary if the courts could just change the law through means of ruling by evolving interpretations as is the case with a Living Document approach.

The Living Constitution threatens the inalienable rights and protections our forefather fought and died for, by consolidating power in government hands and changing our limited government to an unlimited one where rights are given by the government and the only protected rights are government rights.