Over the Fourth of July weekend, Supreme Court Justice Sandra Day O'Connor was nearly squished. A giant beam nearly fell on her as she sat on the stage during a celebration of the U.S. Constitution. While I wish no harm to befall O'Connor, there was a Tom Wolfe flavor to the near-death mishap. For a brief moment, it felt like the real authors of the Constitution were reaching out to punish the personification of our "living Constitution."
After all, O'Connor is the Constitution these days. Because she's almost always the tie-breaker in every close vote on the court, she's been dubbed "the most powerful woman in America" by The New York Times and National Review alike.
As Charles Krauthammer put it recently, "The Constitution is whatever Justice Sandra Day O'Connor says it is. On any given Monday." That's because O'Connor changes her mind all the time. Seventeen years ago, for example, she thought anti-sodomy laws were constitutional. Now she doesn't. And since the words on the constitutional parchment haven't changed, it's pretty clear that the woman behind the curtain is the real Wizard of Oz.
The phrase "living Constitution" goes back a long time, though I can't find the source (if you know it, let me know). The idea is simple. Al Gore summed it up pretty well when he was asked during the 2000 campaign what kind of judges he'd appoint. "I would look for justices of the Supreme Court who understand that our Constitution is a living and breathing document, that it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people."
The most popular argument against a "living Constitution" is also pretty simple. Once you accept the proposition that the words on the page can mean what you want them to mean, well, then the words on the page matter less than the views of those we select to interpret them. Once this happens, the Court in effect becomes an unelected and unaccountable legislature.
This is why many conservatives think champions of a "living Constitution" are really just cheaters. As Judge Robert Bork noted in The Tempting of America, "The abandonment of original understanding in modern times means the transportation into the Constitution of the principles of a liberal culture that cannot achieve those results democratically."
In other words, proponents of a living Constitution may claim to speak for the people, but they see no need to abide by the wishes of the people if they think the people are wrong. That's fine with me if the Constitution has a fixed meaning. But if the meaning of the living Constitution is simply a matter of one "swing" justice's opinion, then somebody must prove to me that God's driver's license says "Sandra Day O'Connor" on it.
But there's another argument against the doctrine of the "living Constitution" that we don't hear very often. Constitutions are supposed to be dead. In fact, the only good constitution is a dead constitution.
Historically, radical democrats like Tom Paine or Thomas Jefferson have despised the idea that we the living should have our choices limited by the deceased. Why should what a bunch of dead guys decided 200 years ago (or 2000) limit our decisions today? And when you think about it, from the perspective of democracy-worshippers, they're right. Why shouldn't we be able to vote away the Bill of Rights, habeas corpus or any other rules established by dead white males?
The answer is pretty simple. The rules of the dead keep us free. Imagine you're playing baseball and all the rules can be changed mid-game.
Technically you'd be more "free." After all, you could vote to eliminate strikes and balls. You could choose to run to third base first or extend the innings indefinitely until you win. But then again, so could everyone else. In other words, if you don't set the rules in advance you don't get freedom, you get anarchy. You don't get a baseball game, you get a bunch of guys running around in funny clothes with clubs.
A Constitution that loses its meaning is a Constitution that says no rules in our society are permanent. When one generation sets the rules for future generations, writes Harvard's Stephen Holmes in Passions and Constraint: On the Theory of Liberal Democracy, "it does not enslave but rather enfranchises future generations."
I'm not implacably opposed to changing the Constitution, but the way we do that is by amending it, not by simply "reinterpreting" it based upon the gut instincts of a few unelected lawyers.
When we amend the Constitution, the entire society ponders what kind of country this will be long after we're dead. When the Supreme Court communes with "the living Constitution" it says future generations will have to fend for themselves.