Living Constitution Theory Kills the Democratic Process
Ever heard of the living constitution theory? If not, you have definitely seen it in action. Almost every other day, we are faced with another court case where a judge somewhere has declared some long-standing law unconstitutional. Why? Because of the application of this theory. It is practiced by those many have come to call activist judges. Many problems and ambiguities facing society today have resulted from this living constitution theory.
According to Attorney David Dieteman, the living constitution theory means that "rather than having the meaning of the words on the paper, the federal constitution means whatever it ought to mean at a given time. It necessarily follows from this that it will not mean the same thing at different times." Sound like a good idea to you? If not, Dieteman agrees. He maintains that "a 'living' constitution is no constitution at all--it is in fact nothing." He illustrates this claim using a speed limit, pointing out what would happen if it were, in fact, a "living" speed limit:
It is this idea of a living constitution that is behind the problems I noted in the post entitled, "International Law Interprets the U.S. Constitution?" from yesterday. Rather than strictly interpreting the Constitution as it is written, judges have adopted the practice of projecting meaning onto the text, rendering the writers original intent void of substance or significance.
It is not to say that the Constitution is an infallible document, but if there are to be changes, they should be according to the will of the people who have to live day to day according to these laws, not individual judges with a god-complex. In reference to the decision of the Supreme Court to strike down the juvenile death penalty, Fox reports Antonin Scalia's criticism against the living constitution theory:
According to Attorney David Dieteman, the living constitution theory means that "rather than having the meaning of the words on the paper, the federal constitution means whatever it ought to mean at a given time. It necessarily follows from this that it will not mean the same thing at different times." Sound like a good idea to you? If not, Dieteman agrees. He maintains that "a 'living' constitution is no constitution at all--it is in fact nothing." He illustrates this claim using a speed limit, pointing out what would happen if it were, in fact, a "living" speed limit:
Imagine for a moment that the speed limit was a "living" speed limit. Rather than be bound by the posted 65 (in Pennsylvania) or 70 (in Michigan), you could tell the officer who pulls you over that the traffic law is "a living thing," and that for your high-performance car, on this flat, straight, dry road, such a law drawn up by dead white males (who probably smoked tobacco and were heterosexuals, and were at least related by skin color to persons who might have owned slaves) can have no application to you."As absurd as this sounds, the point is clear. If there is no objective standard, there is no fair and consistent rule of law. Dieteman goes on to say that when this same idea is applied to rape, for instance (as it actually is along with many other important issues), the "game is no longer funny."
It is this idea of a living constitution that is behind the problems I noted in the post entitled, "International Law Interprets the U.S. Constitution?" from yesterday. Rather than strictly interpreting the Constitution as it is written, judges have adopted the practice of projecting meaning onto the text, rendering the writers original intent void of substance or significance.
It is not to say that the Constitution is an infallible document, but if there are to be changes, they should be according to the will of the people who have to live day to day according to these laws, not individual judges with a god-complex. In reference to the decision of the Supreme Court to strike down the juvenile death penalty, Fox reports Antonin Scalia's criticism against the living constitution theory:
Good question. Anybody have a good answer? Unfortunately, now that judges have gotten the taste of power in their mouths (a Superior Court judge ruled just yesterday that denying same sex marriage is unconstitutional in the state of California), prying it away from them may be a job tougher than anyone can handle. We cannot have a rule of law based upon the tenuous foundation of situational ethics. I applaud Scalia's judicial attitude and hope that it will not remain the exception to the rule.Justice Antonin Scalia criticized the Supreme Court's recent decision to strike down the juvenile death penalty, calling it the latest example of politics on the court that has made judicial nominations an increasingly bitter process.
In a 35-minute speech Monday, Scalia said unelected judges have no place deciding issues such as abortion and the death penalty. The court's 5-4 ruling March 1 to outlaw the juvenile death penalty based on 'evolving notions of decency' was simply a mask for the personal policy preferences of the five-member majority, he said.
'If you think aficionados of a living Constitution want to bring you flexibility, think again,' Scalia told an audience at the Woodrow Wilson Center, a Washington think tank. 'You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility.'
'Why in the world would you have it interpreted by nine lawyers?' he said."
Labels: David C. Price
posted by DAVID C. PRICE at 3/15/2005 07:10:00 AM
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1 Comments:
A very well-written article. I'm adding you to my blogroll and referencing your article here.
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