Long live the Constitution
There's a lot of buzz today about a NYT piece that says our Constitution is old and outdated and no longer looked to by emerging democracies around the world as an example of how to draft your country's basic law. Various folks are being quoted -- including SC Justice Ginsberg -- to similar effect.
Well, as we used to say in junior high, BFD. I don't care what the NYT, Justice Ginsberg, or various emerging countries have to say. More than that, I am sick and tired of hearing endless bloviation about the wonders of having a "living constitution."
The "living constitution" is a misnomer. Those who use it mean to imply that our Constitution is endlessly updatable by fresh infusions of the Spirit of the Age; in other words, it can mean whatever we need it to mean. By my understanding, that's not a "living constitution," but an undead
one. The mad scientists of Libertopia keep trying to make the Constitution sprout extra limbs and transplant into it organs from the cadavers of failed societies. It's a crime against nature, an unholy enterprise that calls for resistance on the part of some pitchfork-wielding peasants, if you ask me. Burn the monster!
And let us be clear: we who resist the "living constitution" are not enamored of some dead thing, stretched out and pinned on a card in a display case gathering dust. We believe that our Constitution is very much alive, for it is a compact among all Americans, living and dead. Recall what G.K. Chesterton said about Tradition: it is the democracy of the dead. It is the secular equivalent of the Communion of Saints. The past and the present and the future all join hands over the Constitution. We of the present have received a great legacy from those who lived before us, but we receive it in trust
for those who will follow us. We have a fiduciary responsibility not to blow our children's inheritance (legal as well as economic).
This doesn't mean you can't change the Constitution. It's not divinely inspired. But you can't just make up a whole new understanding and do an end-around by way of some fool in a black robe who thinks he or she can gavel in a whole new reality. You've got to do it the hard way.
You've got to convince people. Lots of people. The normal route is an Amendment agreed to by two-thirds of both Houses of Congress plus three-fourths of the State legislatures; there are other, even more difficult and chancier, ways to do it, but that's the usual. People -- ordinary people -- get to think about it and argue about it and weigh the impact of it. Lots and lots of chambers of elected officials have to grind it out and agree to it. And if enough people really, really want to change the Constitution, then they can make it into anything they want.
And that beats some kangaroo court or El Supremo jack-in-office doing it. The Constitution was expressly drafted to keep them from experimenting upon it.