We’re hearing a lot today about a so-called “Living Constitution.” Indeed, Barack Obama has in the past bemoaned the fact that prior Supreme Courts, notably the one presided over by Earl Warren in the 1960s, failed to break “free from the essential constraints that were placed by the founding fathers in the Constitution.” He has also suggested that the U.S. Constitution was basically a “charter of negative liberties,” that falls far short of what is needed these days.
Of course, this is nothing all that new under the sun, it has been noised about before. In fact, many now look back on the days of the New Deal and Franklin Roosevelt’s government-by-winging-it as the gold standard of what should be done now. FDR talked much about the Constitution of the United States being a “living” document. He tried to “fundamentally transform” the court in 1937 via a court packing scheme—though this became his political bridge-too-far.
But undeterred even by the fact that his New Deal vision-hallucination created an actual second Great Depression in 1938 and that it took the mobilization efforts of World War II to really end economic hard times, he forged ahead. With fanatical zeal compounded by health challenges that many now believe were messing with his mind and judgment by 1944, Mr. Roosevelt invented a whole new collection of “rights” for the American people—apparently just by saying so. One was “the right to adequate medical care.” Another was “the right of every family to a decent home.” I suppose that now, with the latest developments regarding the health care issue, we should be on the lookout for an eventual Rooseveltian effort to make sure everyone gets a decent home subsidized by “We the people.”
Now that well-honed “community organizer” skills have been applied to Congress, look soon for the rhetoric, not to mention the arm twisting, to muscle-up in efforts to ensure that the Supreme Court falls in line and marches in step. I am convinced that what we are going to see in not-too-distant days to come will be nothing short of a full-court press, one that will make Mr. Obama’s dressing down of the Justices during his recent State of the Union address look like an exercise in ego-enriching affirmation.