The “Living Constitution”

Suppose you are the president of a building maintenance company. In about 1982 that company signed a contract agreeing to maintain all the windows in a certain office building. The option for yearly renewal has been exercised so the contract is still valid.

One day you get a call from the building manager informing you that you are in default and he will sue unless you correct the problem. What? You've had people there every week, cleaning the windows and making sure that they are weather tight, how can you be in default? The manager points out that the contract says all the windows in the building. However you have done nothing for the Windows operating systems on the computers in the building. Many of them are now virus-infected and not working properly. He demands that you fix them.

Of course you respond that the contract never meant computer windows which didn't even exist when it was written. “Not so,” he replies. “We have a living language and the contract is written in that living language so it is a living document. The term 'windows' now applies to computer Windows which means the contract does as well.”

Of course that sounds silly. Should you be sued I would hope that any judge would throw it out of court. The contract has the meaning it had when it was written. To claim otherwise would potentially change the meaning of all contracts. For any agreement to be useful it must have a fixed meaning. Otherwise we would not know what we will be expected to do to fulfill our part of the bargain.

Unfortunately there are many who want to change the meaning of the most important agreement we have in this country – our constitution. Those people claim that it is a “living document,” a high-sounding phrase, but essentially without meaning. Documents do not live except in the sense that they can be changed by the agreement of all parties involved. Contracts can be changed if all signers agree. Likewise the constitution includes provision for changes, two methods of making changes in fact. That has been exercised throughout our history so that it now has 27 amendments. That in fact is the only sense in which the constitution was ever intended to be a “living document.”

Those claiming that we have a “living constitution” simply want to change its meaning without getting the people’s approval in the manner provided. Effectively, they want to arrogate to themselves the dictatorial power to change our government, regardless of the will of the people.

“But wait,” some will say. “What about the fact that some parts might be understood differently? In fact some of the writers themselves disagreed over what they wanted it to say.”

Those objections are common today but are in general mere smoke screens, put up by people who do not like constitutional restrictions on government power. While there are a couple of points that might be difficult to understand, the great bulk of the document is quite explicit when we look at the common meaning of the wording at the time it was written. That is the only valid way to look at it, just as with any contract the only valid meaning is what the wording meant when it was written.

The fact that there is now a computer operating system called called “Windows” has no effect at all on contracts written before it existed. Likewise the fact that some words have changed their meaning since 1787 has no effect on the meaning of the constitution. We have to look at what those words commonly meant in legal documents of 1787, or in the case of amendments, at what they meant when the amendment was written. The meaning must remain fixed if it is to have any meaning at all.

As for the writers disagreeing among themselves as to what they wanted the constitution to say, that is also meaningless. When people get together to write a contract there is almost always disagreement on what that contract will say. Some may want an escape clause, some may oppose it. Some may want automatic renewal in the absence of specific cancellation while others may want renewal only if all parties specifically agree to it. That means nothing, what counts is what eventually gets written in the final, signed document.

Likewise what the constitution's writers wanted has no validity. Some wanted a quick end to slavery, some wanted slavery to be protected forever. Neither viewpoint became part of the constitution. Only the wording actually included and ratified has any force or validity. That is the only way that remarkable document can protect our liberties. If its meaning can be twisted to suit the whims of politicians, it becomes nothing more than a historical artifact. However if we follow the wording as it was understood in the time and context of its origin, we will protect our liberty from homegrown tyranny.

To allow twisting of the constitution's meaning removes our ability to know what to expect as citizens and in our businesses. That harms our personal life as well as our economy just as an ex post facto law would. (See my blog on that at http://hallillywhite.blogspot.com/search?q=ex+post+facto).

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