One of the most high profile individuals critical of the idea of a “Living Constitution” is US Supreme Court Justice Antonin Scalia. He regularly dismisses the idea of a “living Constitution.”
“That’s the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break. But you would have to be an idiot to believe that. The Constitution is not a living organism, it is a legal document. It says something and doesn’t say other things.”
My take on this is simple: If the document is a “living” thing and is to be interpreted by prevailing societal opinion, then what is being protected? If the Constitution can be interpreted differently from age to age (or administration to administratipon) depending on prevailing “conventional wisdom” and opinion, then what is actually being guaranteed to us? If the Supreme Court can “add”, “find” or “reinterpret” things in the Constitution as they deem necessary in order to conform to current notions of Constitutional jurisprudence, then what is ever safe? The answer, of course, is nothing. What may be protected today could be removed tomorrow if society and the Justices feel the times demand it. Proponents of the “Living Constitution” don’t see this as a problem because they use the “living constitution” idea to “expand” the reach of the Constitution, not restrict it. Proponents naturally feel that their ideas are for the common good, or further a worthy public policy, and, therefore, there is no harm in the “new” jurisprudence since it is ultimately for the best. The problem with this approach is that it is too self-focused, dependent upon the narrow perspective of the day, and is no different than government without a constitution: whatever is in the public good as determined by the current powers-that-be is codified.
Simple hypotheticals illustrate the case: Today, if police pulled over every minority driving by and searched his person and vehicle for drugs, without even a hint of probable cause, the search would be considered “unreasonable” and in violation of the 4th Amendment guarantee against “unreasonable” searches and seizures. If that rule is made in stone, then we never have to worry about permissible police stops based on nothing more than skin color. However, what if 50 years from now 80% of the people felt that police should be able to pull over minorities and search their cars and persons for drugs without probable cause? Maybe the concerns of the day seemingly justify it. On a not so theoretical level, Supreme Court Justices sympathetic to this view would be able to find room in the Constitution to uphold it. Something along the lines of: “Today’s new drugs and technology make it impossible for police officers to combat illegal drug use without invasive efforts. We believe the states’ interests in corralling drug dealing and drug use outweigh the inconvenience of being stopped while participating in an activity that is not guaranteed, but merely granted as a privilege: driving. Therefore, the search is not unreasonable.” This simple case is illustrative of the fact that if the Constitution is allowed to be interpreted as a living, breathing, changing document, then the only guarantee we have to our liberty is that Americans will always be rational, tolerant, and reasonable, and thus, societal opinion will never devolve into a state where today’s abhorred practices would be acceptable tomorrow.
Unfortunately, a look at history shows this assumption to be false. During World Wars 1 and 2, the 1st Amendment was severely restricted and communists and socialists were thrown in jail for merely handing out leftist literature or being members of leftist organizations. The court relied on prevailing societal winds that overexagerated the “imminent threat” of communists in America. The country was in a panic, communist subversion was a fear for an overwhelming majority of Americans, and free speech was easily restricted far below pre-war levels (and far below what we would recognize today) by Supreme Court Justices sympathetic to the feelings of the population who knew there would be no outcry for jailing communists and socialists. Japanese-Americans were also rounded up and placed in camps, in clear violation of the 4th Amendment, based on suspicions that they would aid the enemy. The country was at war, so it seemed to make sense to people living in the narrow-perspective, irrational fear of the day.
It’s not hard to imagine similar events in the future, for there is always a cause-du-jour to excite groups of people: war, poverty, drugs, crime, etc. It’s hard to believe major portions of the Patriot Act were not permitted using this very rationale. If there is another terrorist attack, can we expect our freedoms to be infringed even further? If the Constitution is “living,” then the answer is, “Yes.” If the Constitution has a fixed meaning, then the answer is, “No.”
Linked with Objective Justice in “Scalia and Stevens.”
Stop the ACLU has put up an article: “When One of My Favorite Justices Speaks – Everyone Needs to Listen.”