BY DENNIS BEHREANDT
Progressives hate the Constitution. They like to claim that it is a “living” document that should change with the times. Columnist and pastor Byron Williams exemplifies this view. Writing for the Huffington Post in 2012, he quipped: “Though I would not consider myself on an intellectual par with James Madison, I would say that I have a better understanding of what ‘We the people of the United States in order to form a more perfect union’ looks like in the 21st century than he does.”
Williams concluded: “The Constitution must be a living document if it is to represent those living today.”
There is much to take issue with in just these two short statements. Is Mr. Williams, though admittedly less intelligent than Mr. Madison, possessed nonetheless with the powerful intellect and towering moral insight necessary to determine for all 300 million Americans what the Constitution should mean in the 21st century? Or, does he believe that each American’s own interpretation is equally valid? If the answer is “yes” to the first question, then Mr. Williams would have himself be our wise and benevolent dictator. If the answer is “yes” to the second question, then we have no law whatsoever. We have instead Aleister Crowley’s take on law: “Do what thou wilt shall be the whole of the law,” he said.
On the other hand, If the answer is “no” to either question, then Mr. Williams’ argument that the Constitution is a living document is nonsense.
The purpose of the Constitution is quite simple, actually. It establishes the nature of our government, apportioning power among the three branches, and it specifies what powers those branches may exercise. Further, it specifies what the government may not do.
This has two important effects. First, it creates a level playing field. Those living under the rule of law established by the Constitution know what the rules are, and the rules do not change. If the rules were to change constantly, instead of being fixed by the Constitution, it would be difficult, if not impossible, to operate a business, or even to live. Rather than living according to fixed law, people would live purely by the laws of power. Bribery and force alone would dictate who flourished and who failed.
If this is hard to comprehend, compare it to a football game. There are established rules in football that do not change during a season or a game. Officials rule impartially based on a rulebook known to all participants. But imagine if the rulebook could be changed by the officials at their own discretion at any time during the season or during a game. It would be chaos, and playing the game would be impossible. Football, as a sport, would disappear.
The U.S. Constitution is special because it establishes an immutable rulebook. There are procedures in place to change the Constitution, but they were deliberately made difficult by the Founders to prevent rapid and radical change.
The Founders knew that if government and law could be changed on a whim, freedom and prosperity would be impossible. This was behind their concerns about democracy. As James Madison famously observed, “democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.”
Because the U.S. Constitution is deliberately designed to prevent factions from gaining the ability to change the nation’s laws whenever they wish, progressives, who want just that kind of power in order to implement their program, either fall back on the ridiculous “living document” argument or they look abroad for what they think are “better” constitutions.
This was exactly the line taken by Supreme Court Justice Ruth Bader Ginsberg when she gave advice to the Egyptians on drafting a new constitution. “I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012,” she told Al Hayat television. “I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, have an independent judiciary. It really is, I think, a great piece of work that was done.”
What she probably likes the most about the South African constitution is its grant of total power to the country’s Supreme Court. Unlike the U.S. Constitution that gives Congress oversight authority over the Supreme Court in Article III, Section 2, in South Africa, Section 165 of that nation’s constitution proclaims that the courts have essentially total power, and that “No person or organ of the state may interfere with the functioning of the courts.”
Such a grant of total power to the judicial branch would be music to the ears of progressives. They could then use the court to rule in any manner they wished and neither Congress nor the Executive branch could do anything about it.
Such an arrangement functions as sort of a constitutional escape clause. This is not an uncommon practice, and other such escape clauses are found in European constitutions.
Consider the Bill of Rights. These spell out those things that the U.S. government may not do, and serve as guarantors of the people’s liberties. Moreover, the Ninth and Tenth Amendments make clear that rights enumerated in the Bill of Rights are only the tip of the iceberg. The people retain a wide array of other rights and, moreover, the many powers not specifically given to the federal government “are reserved to the States respectively, or to the people.”
Contrast this with the German constitution. Like the U.S. Constitution, the German constitution specifies that “the freedom of the individual is inviolable.” That sounds good, but wait! The very next sentence states: “These laws may only be encroached upon pursuant to a law.”
In the United States, the Congress “shall make no law” abridging freedom. In Germany, by contrast, the people shall be free, until the Bundestag makes a law abridging freedom. Now that’s a living constitution for you!
The European Union also operates under a Charter of Fundamental Rights. This document is likewise not always concerned about freedom. Among the rights it enumerates, for instance, is that found in Article 14: the right “to receive free compulsory education.” This is a spectacular bit of cognitive dissonance. How those being compelled to receive a free education that they do not want are supposed to consider themselves free is a very good question indeed. Moreover, those being compelled to pay for the free education their compatriots are being forced to receive should likewise ask themselves just how free they are in light of Article 14.
As with Germany, the rights spelled out in the European Charter of Fundamental Rights are theoretical and ephemeral. Article 52 notes that there may be “limitation on the exercise of the rights and freedoms recognized by this Charter” so long as those limitations “are provided for by law….” Oh, and the “limitations may be made only if they are necessary” and “meet objectives of general interest recognised by the Union….”
In other words, if the European Union finds freedom of speech to no longer be in the “general interest,” then freedom of speech can be legislated out of existence.
Unlike these barbaric documents, the United States Constitution genuinely attempts to protect the fundamental rights of citizens.
When we let the President circumvent Congress by legislating via executive orders, we undermine our Constitution and our own freedom. When Congress fails to exercise its appellate jurisdiction over the Supreme Court, we undermine our Constitution and our own freedom.
When all the branches of government willfully ignore the Constitution, it puts us all at risk.
The United States Constitution is not perfect. No work of human hands is, or ever can be. But as a charter of government, and as a tool for protecting the natural rights of citizens, no other charter of government is in the same league.
Preventing the encroachment of tyranny means respecting and protecting the Constitution of the United States.
BASIC LAW for the Federal Republic of Germany.” http://www.constitution.org/cons/germany.txt
Behreandt, Dennis. “Ruth Bader Ginsberg’s Constitution.” American Daily Herald. February 8, 2012. http://www.americandailyherald.com/pundits/publisher-s-corner/item/ruth-bader-ginsburgs-constitution
Charter of Fundamental Rights of the European Union. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0389:0403:en:PDF
Williams, Byron. “Constitution is Clearly a Living Document.” Huffington Post. April 16, 2012. http://www.huffingtonpost.com/byron-williams/same-sex-marriage-constitution_b_1429064.html
Self-Educated American Associate Editor, Dennis Behreandt, is the Founder and Editor In Chief of the American Daily Herald. Mr. Behreandt has written hundreds of articles on subjects ranging from natural theology to history and from science and technology to philosophy. His research interests include the period of late antiquity in European history as well as Medieval and Renaissance history.