For more than a half century, now, we have heard that we have a “living” constitution. And it has always been difficult to argue with this position. After all, the opposite of a “living” constitution is a dead one. And who wants to be seen defending the dead hand of the past? Wouldn’t we all want to be defenders of life, breath, progress, and all good things?
But the question we have to come to grips with in considering our Constitution is not “do you like living, breathing, and other good things?” It is, rather, “do Constitutions breathe?” Or, if you prefer, “do we have to treat our constitution as a living, breathing being in order to support the good things we want to have come out of our political system?”
After all, we all have people, and even pets, we want to make certain breath so that they can live. We love our families, and even our pets. And most of us are rather fond of our Constitution as well. But a constitution does not live or breath, nor should be made to jump around as if it did.
But, if a constitution can’t breathe, then why is the metaphor so prevalent, and seemingly powerful? Because it is useful. It presents us with a stark choice, between standing on the side of old, bad things like slavery or segregation, or insisting that the government ought to act in a fashion that is, in essence, moral.
Such a formulation obscures that fact that, in discussing how we should approach and consider our Constitution, we should not be jumping right into questions of interpretive method (“originalism” or “common law, living constitutionalism,”) but, rather, first asking what a Constitution actually is, and what it is for.
So, it seems best to begin with the question “what is a Constitution?”
If you actually look at our Constitution—or pretty much any constitution—you will notice that it’s all about power. There are some stirring words about a more perfect union, about establishing justice and other good things. But these are general terms standing in for “the common good;” what the constitution itself is about is the distribution and limitation of governmental power.
It tells us what Congress gets to do—who gets to be a member of Congress, what they have to do to make a law, and what kinds of things the federal, as opposed to the state, government can make laws about. The constitution says the same kinds of things about the president and about the Supreme Court. At the beginning of each of the first three Articles of the Constitution, we are told that “the (legislative/executive/judicial) power shall be exercised by” the corresponding branch of government. At their most basic, then, constitutions are about deciding who gets to exercise what powers and how. That is, legislative, executive and judicial powers are defined by the constitution.
Many people prefer to emphasize their rights—especially the rights we might trace back to the first ten amendments to the constitution, or the “bill of rights.” But those provisions also are about power—they tell us that “congress shall make no law” respecting an establishment of religion, and otherwise restrict the powers of the government to act.
Proponents of the “living constitution” argue, in effect, that our understanding of these rights—hence these rights themselves—grow over time. Rights develop especially, on this view, as judges seek to apply them to new circumstances and in light of previous judicial decisions.
This is a “common law constitutionalism.” It harks back to the old common law system in England. Many of those of us dubbed “originalists” are actually rather fond of that old system. But it was a very specific system, embodied in a very specific tradition. It was rooted in the determination that something was law only if it had been the custom, or rule, “from time immemorial.” It rested on consistent recurrence to “the law of the land,” which itself came from immemorial custom. It rooted rights in declarations of pre-existing arrangements and customs, eschewing any doctrine of development; instead “development” resulted from application of very old, time-tested principles to new circumstances.
The common law system was intentionally and consistently backward looking. It rested on an understanding of unchanging principles. It did not see the root of legitimacy, as “living constitutionalists” claim, in readings of laws and their purposes that would be “fair” in the eyes of persons who do not share any particular tradition, historical background, or cultural assumptions. It was no modern construct of Kantian philosophy. It was an institutionalized embodiment of English history.
What is more, it was most assuredly not a system with a written constitution. Judges in England had no other choice but to interpret the laws in relation to a historically grounded understanding of what English law was all about; that understanding had to be rooted in precedents. Why? Because there was no document providing rules for rule-making. There was no higher law document spelling out the form, and limits, of the powers of the central government.
And it was why British courts did, and to this very day do, absolutely reject the idea that there should be judicial review in Britain. Parliament is the locus of power in Great Britain, and of legitimacy in that system, so attempts by courts to second guess Parliament through explicit judicial review are, in their system, illegitimate.
The United States, on the other hand, does have a written constitution. And it should come as no surprise that this is an important distinction between our two constitutional and judicial traditions. Where the English have had to fight again and again to establish basic rules about whether Parliament or the King gets to make laws, and what those laws can be about, we’ve established a higher law document intended by its very nature to settle those basic questions.
Of course, the Constitution can’t settle every question, or even every question of importance to our society. It cannot tell us how we should treat one another, how best we can address issues of poverty, or even of race and sex in every instance, because by its nature, and especially in a free society, it cannot tell us what to do in every aspect of our lives. Our constitution is not, after all, a detailed legal code, let alone a detailed code of personal behavior applicable to every person in every circumstance. It is by its nature and according to its purpose, a frame of government, not the be all and end all of public and private life.
And this is far from unimportant. For the Constitution is intended to settle basic, structural questions concerning who governs and how. And if that constitution is reduced to a mere touchstone, if judges merely have to mention its terms as they refine and change their own old decisions, the Constitution doesn’t breath—it ceases to function, as does our republic.
Then we have a new kind of government. Then we have a government which is not limited by the rule of law. Instead, we have a government shaped and ruled by judges according to their own guesses and prejudices about what is good and right.
A Constitution organizes governmental power. If it is followed, it also will limit that power, thereby protecting you and me from bad actors, including bad cops, bad National Security Agency personnel, and other powerful actors working for the federal government. But, to protect us, the Constitution has to be followed.
If the Constitution is not followed, then we simply have rulers who will act without law, according to their own will. Presidents will throw people into jails on foreign soil, without trial, without rights. The IRS will decide whether it likes you or not, and treat you accordingly, including taking away your tax exempt status, and potentially throwing you into jail for tax evasion. We won’t have the basic protections of law.
So, whether one considers oneself to be on the left, the right, or at the center of our political spectrum, it is to all our advantage to treat the Constitution as what it is, a structure of government, and a law for making laws, so that we may enjoy its limited but essential benefits. Without these benefits, we will not have the means by which to carry out our policy debates in relative peace, and with the knowledge that the results will be clear, predictable rules the people can know and follow.
Without clear, predictable rules, there can be no rule of law, no standard both rulers and ruled can and must know and follow. And the result will be the triumph of the will of those in power. And that is no life for any man, or any society.
Bruce P. Frohnen is a Senior Contributor to The Imaginative Conservative and Professor of Law at the Ohio Northern University College of Law. He is the author of Virtue and the Promise of Conservatism: The Legacy of Burke and Tocqueville, The New Communitarians: The Crisis of Modern Liberalism, and co-editor of Community and Tradition: Conservative Perspectives on the American Experience.