But some may ask, "Isn't the Constitution a living document?" That is what we learned in our public school social studies courses. But the phrase "living Constitution" has been grossly misused to the point that it no longer has any validity. The Constitution is "living" in the sense that the original principles should apply to new facts. For example, the Fourth Amendment protects our "papers" from unreasonable searches and seizures. What about computer records that are still on the computer and not yet on paper? Are they protected? Of course. This is simply the application of an old principle—our written information is protected—to a new set of facts. Whenever we have the application of old principles to new facts, that is a proper understanding of the living Constitution. Also, whenever we amend the Constitution by the formal amendment process, that too is proper and quite consistent with all of the Founders' theories of self-government. The Constitution is alive in the sense that it may be changed by this formal process requiring the assent of two-thirds of each house of Congress and three-fourths of the state legislatures. What is generally meant by "living Constitution" today, however, is the discovery of entirely new legal principles. Reproductive freedom. Homosexual rights. These are examples of entirely new principles of freedom that cannot be legitimately tied to any phrase in the written Constitution. Thus, to make absolutely new rights out of whole cloth is a clear act of judicial tyranny. Unelected judges are not just legislating, they are assuming the super-legislative authority of two-thirds of each house of Congress and three-fourths of the state legislatures when they effectively amend the Constitution by inventing new rights.
Wednesday, March 24, 2004
That's a term that has been thrown around a lot lately. From the Home School Legal Defense Association comes an article titled, Can Judicial Tyranny be Stopped?. In it, Michael P. Farris, Esq, comments on the concept of a "living" constitution and the process of determining (or creating) intent: