One 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.
What exactly does this mean?
It 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.
Thus, 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.
The 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.
Imagine that the laws against rape are “living,” and this game is no longer funny.
I 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 A sustained gripe campaign ultimately ended Richard Nixon’s “gas-saving” 55 mile per hour speed limit (yes, it was originally enacted in response to an “energy crisis,” but hung on so long in part because of “safety” concerns).
It 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.
The 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.)
The 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.
Whereas 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 lost.
One 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.
This 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).
To 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”).
St. 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.”
In 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.
The 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
Consider 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.
This 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.
Want 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.
December 7, 2000
Mr. Dieteman is an attorney in Erie, Pennsylvania, and a PhD candidate in philosophy at The Catholic University of America.