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.
Look for language reminiscent of what Franklin Roosevelt used during the 1936 campaign—rhetoric that should have been a red flag to Americans indicating hubris to come. During his acceptance speech before the Democratic convention in Philadelphia that year, he railed against his favorite straw men—“economic royalists”—and by extension their defenders (including those stodgy “conservatives” on the Supreme Court who stood in the way of progress). Having been accused (rightly, in my opinion) of trying to, in effect, “fundamentally transform America” in ways unwarranted by anything in the nation’s political or documentary past, he waxed defensive: “These economic royalists complain that we seek to overthrow the institutions of America. What they really complain of is that we seek to take away their power. Our allegiance to American institutions requires the overthrow of this kind of power. In vain they seek to hide behind the flag and the Constitution.”
It is, I suppose, increasingly un-cool these days in some quarters to name-drop using the Founding Fathers of our country, but I think good ole, George Washington nailed it when he said: “The basis of our political systems is the right of the people to make or alter their Constitutions of government. But the Constitution which at anytime exists, ‘till changed by an explicit and authentic act of the whole People is sacredly obligatory upon all."
Yet today, we are on the verge of a period of potential judicial activism unprecedented in the history of the Republic—all in the name of a “Living Constitution.” It will be up to those on the court to resist the zeitgeist inside the Beltway. It will fall to people such as Justice Antonin Scalia, who has noted in the past that, “judges tinker with the Constitution to ‘do what the people want,’ instead of what the document actually commands,” to stand in the gap for the rest of us.
I am actually optimistic about this, especially in light of some of the efforts on the part of various State governments. Little noticed last fall in the Republican November sweep, was the election in Virginia of Ken Cuccinelli as state Attorney General. Ken was en route to the Federal courthouse in Richmond barely five minutes after President Obama put his pen to the health care measure last Tuesday, legal papers in hand. Other state AG’s are doing similar things across the country, but Cuccinelli’s argument is unique, as noted in coverage by the Washington Post:
“A Virginia law enacted this month that prohibits the government from requiring people to buy health insurance creates an ‘immediate, actual controversy’ between state and federal law that gives the state unique standing on which to sue.
The move was classic Cuccinelli -- bold, defiant and in-your-face, an effort to use any means at his disposal to stop what he sees as a federal government gone wild. That approach has transformed him in just a few months from being a fairly obscure state senator into a national conservative folk hero -- a tea partier with conviction and, more importantly, power.”
Of course, Cuccinelli’s efforts are all in the spirit of another Virginian—a man who once warned about the danger of the Constitution becoming “a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please.”
So said a guy named Thomas Jefferson a while back. Pardon the name-drop.