Having a “living” Constitution is having no Constitution

One of the serious challenges to America’s future is the tendency to interpret the U.S. Constitution and our laws liberally. That is, to understand something written years, decades or centuries ago using the current fluid understanding of how things “ought to be.” 

This concept of a “living” Constitution completely discards the reasoning that occurred when the document was created, and substitutes today’s “preferences” for the principles as understood, intended and written.

Strict interpretation of the language of the Constitution, interpreted through knowledge of how things were during the creation of the document and how the Founders thought, is essential to the nation keeping the magnificent principles with which it was designed. This is known as “originalism,” or maintaining the original intent of the Constitution and laws.

A good example of why that is important is in the meaning of the Second Amendment to the U.S. Constitution, which reads: “A well-regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.”

There are two elements under debate, the first being the meaning of the term “militia.” Today, the term often applies to formal military organizations similar to the National Guard. Thus, the anti-Second Amendment folks suggest that only such organizations are guaranteed the right to keep and bear arms. But when the Constitution was being written, the militia consisted of private citizens who could be called together to act in defense against an attack. It was not the army, nor even a formal organization. 

The other issue is that the anti-Second Amendment folks say it does not give anyone the right to own any weapon they want. People often say that the Founders had no way to imagine the existence of so-called “assault weapons.” And that is true. However, the Amendment guarantees the right to keep and bear arms. There are two different concepts: Keeping arms means to own and have arms, while bearing arms means they may be carried by the people.

It also does not distinguish between the types of arms people may keep and bear. There were knives and swords, etc., and there were hand-held muskets, long rifles, and cannons. The 2nd Amendment doesn’t say to keep and bear muskets and swords, it says to keep and bear arms, meaning whatever arms were available. People were not prohibited from owning a cannon if they chose, to drag it along behind them or tie it to their horse if they wanted. Muskets, long rifles and cannons were the “assault weapons” of their time, and they were precisely what the Amendment guaranteed the right to keep and to bear.

They also try to persuade us that the purpose was to guarantee the right to keep and bear arms for hunting and home defense, but the main threat generating this right was the potential for a threat from an armed enemy, foreign or domestic.

The idea of a “living Constitution” essentially renders the Constitution to mean what a majority of the U.S. Supreme Court Justices says it means at any given time. Today, it may mean something, and next year it may mean something else. That, of course, means the Constitution means nothing, if what it means is subject to the aspirations of a few people at any given time.

The Founders were smart guys. They had seen various types of government be tried, and fall short. Sometimes falling very short. So, they devised a different idea. And the document designed to govern this nation was comprised of broad principles, one of which was great personal freedom, which would last in perpetuity.

Those principles may not be changed on a whim, or because one or more people in a position of power decides to change one or more of the principles.

Thus, if sufficient reasoning and support for changing some portion of the Constitution exists, there is a process for doing that, and that process involves much more than the personal opinions of jurists. The Constitution may be amended, but through a rigorous process.

The National Archives describes this process: “The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. None of the 27 amendments to the Constitution have been proposed by constitutional convention.”

This process was designed to be a difficult one, in order to prevent quirky, impulsive changes to suit some circumstance, which may be fleeting, and change after a time. It was designed to prevent what too many justices of the United States Supreme Court and judges like to do: make law and change the Constitution from the bench.

Under this process, the Constitution will remain what it was designed to be: a standard for the nation that does not change with the tide or the direction and speed of the wind, unless there is a good reason for it and a substantial amount of support for it.

Stacking the Court and term limits for Congress?

Columnist E.J. Dionne, Jr. brought forth a truly important topic recently. “Permit me a question to every truly fair-minded person in our country,” the piece began. “Imagine that one party packs the Supreme Court with ideologues and the other party does absolutely nothing in response. Isn't this abject surrender to an unscrupulous power grab?”

He’s absolutely right: how can they, and we, just sit by and watch as this terribly un-American process goes forward? How can we allow justices to take the bench and act to impose their own political will on the country?

“This inquiry can no longer be ducked. Even those in the deepest denial can no longer ignore Senate Majority Leader Mitch McConnell's nakedly political aim of cramming the Supreme Court with justices who will undo more than seven decades of precedent,” Dionne continued.

When interpretations of constitutional principles and laws become fluid, we find our national stability afloat in a sea of the unknown. What may be a popular view today may become the opposite in ten or so years. Constitutional interpretations that change with the tides of society are not a reliable foundation. The nation requires stability to endure.

And then Dionne wrote this: “They'll do the bidding of corporate interests, undercut voting rights and empower billionaires to buy elections.”

What he is suggesting is that Republicans want to pack the Court with conservative justices who will do Republicans’ bidding.

However, when applied to judicial matters and judges, the term “conservative” does not carry a political context. It refers to the inclination of judicial conservatives to interpret Constitutional and legal language as it was understood when created. On the other hand, “liberal,” when applied to Constitutional and judicial matters, means that judges’ interpretations of such issues matches the political left’s current preferences, rather than original intent.

Dionne accuses Republicans of doing what Democrats do: trying to stack the Court with ideologues. But the ideology of conservative judges is to stay true to original principles, not to interpret them colored by the changing standards of the times. Stacking the Court with people who hew to the original principles the Founders deemed critical to a successful nation is something to be supported, not criticized.

If the Constitution or laws really need to be changed, there is a process for that, and that process is not stacking the court with justices whose legal judgment will flap in the wind.

To improvement the method of selecting Supreme Court Justices, Dionne endorses the idea advanced by Democrat presidential candidate Pete Buttigieg, and supported by other Democrat candidates.

“It would involve enlarging the court to 15 members, with five justices chosen by each party and the last five picked unanimously by those 10 from the lower courts.”

So, improve a system into which politics sometimes creeps with a system that is largely based on politics that would increase the size of the Court by 67 percent?

* * *

Criticism of Congressional “lifers” is nothing new. Even though their voters select members of the Senate and House of Representatives, the Founders did not envision those positions as life-long careers. Their idea was to seek election to the House, or – before the 17^th Amendment to the Constitution was approved in 1913 – be selected by a state legislature for the Senate, spend a few years there and return to your previous vocation.

From 1789 to the mid-1870s the average length of service of members of the House was 2 to 3 years, and for the Senate it was a bit more than 4 years. Then things changed.

When “careerism” peaked in 2007, House members averaged 10 years and Senate members averaged 13 years. While the average in both houses has fallen to seven and 10 years, respectively, there are still many members of Congress who have made it a career.

Data from rollcall.com for 2015 listed 79 members of Congress who had been there for at least 20 years and 16 who had been there for at least 30 years.

House Speaker Nancy Pelosi, D-Cal., has been there since 1987, while House Republican Leader Kevin McCarthy, R-Cal., has been there since 2007.

On the Senate side, Majority Leader Mitch McConnell, R-Ky. was first elected in 1984, and Minority Leader Chuck Schumer, D-N.Y., first elected to Congress in 1981.

Texas Republican Sen. Ted Cruz and Florida Republican Rep. Francis Rooney have proposed an amendment that would impose term limits on members of Congress, as reported by the Independent Journal Review.

“For too long, members of Congress have abused their power and ignored the will of the American people,” Cruz said. “Term limits on members of Congress offer a solution to the brokenness we see in Washington, D.C. It is long past time for Congress to hold itself accountable. I urge my colleagues to submit this constitutional amendment to the states for speedy ratification.”

The amendment would put a limit of two six-year terms on senators and three two-year terms on representatives. In order for the amendment to take affect it must pass both houses of Congress by a two-thirds vote, and then be ratified by 38 states.

Will our elected representatives vote to limit their terms?