The Living Constitution

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of the most nefarious influences in the minds of Americans is the
notion that the federal constitution of 1787 (the “U.S. Constitution”)
is a “living” document.

exactly does this mean?

is supposed to mean 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.

despite the fact that the Fifth Amendment states that “No man shall
be deprived of life, liberty, or property without due process of
law,” the United States Supreme Court once found it “unconstitutional”
for states to have capital punishment. It is beyond rational dispute
that a document which states that a man may be “deprived of life”
following the “due process of law” does not itself outlaw executions.
Yet the Supreme Court thought so.

reason for this is that a “living” constitution is no constitution
at all – it is in fact nothing. 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.

that the laws against rape are “living,” and this game is no longer

do not contend that it is the role of citizens to sheepishly slave
under whatever tyrannical dictates are handed down from above. A
sustained gripe campaign ultimately ended Richard Nixon’s “gas-saving”
55 mile per hour speed limit (yes, it was originally enacted in
response to an “energy crisis,” but hung on so long in part because
of “safety” concerns).

is of the utmost importance, however, for citizens of a republic
such as the United States, and for citizens of the states and cities,
to realize that when you do not like the law, the way to change
it is not to pretend that it is not the law.

concept of a constitution is of a document (or a group of unwritten
concepts and some written documents, as in the English constitution)
which serves as a skeletal structure for the body politic. Rather
than being a functional law which sets the speed limit, for example,
a constitution sets the shape of the regime which will then make
the laws which help us get through everyday life. (Stop laughing
– that is the theory. Anarcho-capitalism, i.e. a purely private
social order, is the subject of another essay.)

trouble in the United States is that certain Americans, in their
super-hero like zeal to “make things right,” lost patience with
the law. They chose to operate outside the legal process “to get
results.” Guess what: your mother was right. This choice has consequences.

American law in the 1950s and early 1960s may have been too slow
to adapt to social changes, the pendulum has now swung fully to
the other side. Today, no change can come fast enough, and the notion
that the law presents any real limits on political action is nearly

notable example of American disrespect for the law is the Clinton
administration’s response to court rulings over the powers of the
U.S. Department of Housing and Urban Development – HUD, for
short. After HUD overstepped its bounds, a federal district judge
issued a ruling to that effect. In reply, the Clinton administration
instructed the regional HUD offices to ignore opinions of U.S. Circuit
Courts – the federal appeals courts which are one step below
the Supreme Court. The HUD offices were told only to abide by a
U.S. Supreme Court ruling.

course of action shows a complete lack of respect for the law (it
may also show that Clinton has not fulfilled his oath – not
surprising for a perjurer – to uphold the Constitution and
execute the laws of the United States).

be fair, the American disrespect for the law is not only the product
of zealous do-gooders striving to overturn unjust laws. It is also
the product of misguided legislators and citizens – who, to
be fair, are zealous do-gooders as well – who have given America
a severe case of hyperlexis (that’s Latin for “too much law”).

Thomas Aquinas famously writes in his Summa Theologica that the
law should not require more of a people than they are able to do,
as they will lose respect for the law. Despite the fact that St.
Thomas lived from 1225 to 1274, our “experts” in Washington (who
would be ousted by term limits) have not learned this lesson. Thus,
the Congress passes its share of burdensome laws – the tax
code, for one – while spawning other federal agencies with
“rule-making” powers that are effectively legislative powers. Between
EPA and OSHA, try to find a good oil-based paint, or some good paint
for a tin roof. Sorry, all illegal now. As one contractor recently
told me, “The government thinks we’re all too foolish to make decisions
for ourselves.”

response, sensible Americans have come to despise our laws. This
is fine; it is the natural and expected response of sane and intelligent
persons to idiotic regulations. But from a long-term perspective,
it is bad. This is the trouble with the nations recovering from
70 years of Communism: the population has grown so used to black
markets, bribing officials, and ignoring the kleptocrats in power
that they are having difficulty in creating a civil society based
on trust, work (private enterprise) and cooperation.

Constitution is indeed “living,” so long as by “living” we mean
that it has not been repealed. In terms of its actual effect on
our daily lives, however, it is as dead as the men who wrote it.
We live in an America defined by the lust for power and a disregard
for the very concept of law. This cannot change until the American
citizenry realizes that government, no matter how “well-intentioned,”
cannot magically solve everyone’s problems. It is only by hard work
and individual effort that any problem can be solved

for a moment the energy required to make your yard look good. Mowing,
weeding, raking, fertilizing, occasional watering, aerating and
vigilant watching for pestilence is required to have a nice-looking
lawn. Edging along sidewalks, curbs and driveways is required. All
this to maintain a parcel of American land perhaps 100 feet by sixty
feet. Can any governmental agency effectively replace your efforts
to care for your lawn? Would you trust anyone else to take care
of your lawn? If you pay for landscaping services, you certainly
know how expensive this is. Substitute “poverty” for “lawn care,”
and you get the idea: it cannot be done. The government, no matter
how much wealth it seizes, cannot effectively do for people what
they cannot or will not do for themselves.

is why private charity – individual initiative – is the
best approach to social problems. We must care for our own relatives,
parishioners, and neighbors who are sick, unemployed, or similarly
troubled. There is no substitute for the intimate local knowledge
of a problem, and for the desire to help someone you know, rather
than a desire to help a faceless “humanity” which you can never
see. Most importantly, there is no way to avoid the reality of hard
work. The decision to “let the government do it” is simply a decision
to “let someone else do it” – and it is clear where such decisions
usually lead: nothing gets done, and we end up with a bigger mess
than at the beginning.

to live under the rule of law instead of the rule of “great men”
(who turn out to be merely charismatic boobs that lied their way
to the top)? Work hard, and don’t expect Big Brother to help you
out. In such a world, there is no need for Big Brother, hence no
need for him to take half your income – and no sophistry like
a “living” Constitution.

7, 2000

Dieteman is an attorney in Erie, Pennsylvania, and a PhD candidate
in philosophy at The Catholic University of America.

2000 David Dieteman

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