I’m usually suspicious of binary thinking, but I think G. K. Chesterton was spot on precise when he said we could either be ruled by rules or by rulers. Our leaders will either govern by the law, to which they themselves are subject, or they will govern by their whims and what they decide at the present moment is the scope and degree of their power. It is in this context that I approach the question of whether or not the Constitution of the United States is a living document.
At least two of the potential candidates for the presidency, Kucinich and Paul, regularly refer to the Constitution, the former flashing his copy of the document during many debates. Despite their repeated reference and revealed respect for the document, these two congressmen have very different ideas about how the Constitution should be interpreted. Ron Paul won’t vote in favor of legislation unless it is explicitly allowed for by the Constitution. Implied meanings, or emanations from penumbras, generally are not going to figure into his interpretation. Dennis Kucinich, who advocates a single-payer not-for-profit healthcare plan, obviously thinks the Constitution, despite the Tenth Amendment, authorizes such a federal program. I think it’s safe to say that for Kucinich, the Constitution is a living document, whereas for Paul it is not. My understanding?
In a sense, I would have to say that the Constitution is a living document, for the simple reason that it is written in human language, a living language no less. It is written in more precise language than, say, the Bible, an intentional and prudent decision by its writers, but that doesn’t take away the historical-cultural character of the language in which it is written. Nevertheless, while philosophically I would defend the living character of its language, as a matter of prudent policy, I would advocate the most rigid, strict-constructionist, interpretation as possible. Why?
The founders of this country understood that either we are ruled by rules or by rulers. That is why in the Declaration of Independence they stressed that the power of government comes from the consent of the governed. In other words, the power in general, and specific powers in particular, that the government has over us are powers we voluntarily give it. The people decide what rules they and their leaders will follow. The alternative is that the leaders decide what powers they have, and the people are coerced into submitting to the will of their leaders, who are really not leaders at all but rulers. We call this tyranny.
If the Constitution is treated as a living document by the government, this opens the door for the government to usurp power and declare what powers it will rule by. A living document approach to the Constitution opens the door to tyranny. A strict-constructionist interpretation of the Constitution, while philosophically not the only valid interpretation, better keeps the government in check, its powers clearly defined. One of the primary purposes of the Constitution is to clearly define the powers of government and the division of powers. It is a tool against tyranny. Alas, it is not guaranteed tool for success. As Joe Sobran points out, the Constitution is no threat to our form of government.
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