How I Know a Dynamic View of The Constitution is WRONG!

Those who believe the Constitution was intended to be a living document and thereby give supposed justification for legislating from the bench are not only wrong, but they are demonstrably wrong.

First, legislating from the bench nullifies the very reason for having a Constitution. Second, the Founders put the amendment process in the Constitution to provide a way of addressing issues that arise. Third, if legislating from the bench was their intent, there simply was no need for establishing the cumbersome amendment process. Finally, legislating from the bench bypasses the deliberative process of elected representatives and the “consent of the governed” and establishes a ruling aristocracy or oligarchy, which is what our forefathers explicitly rejected by leaving England.

When lawmaking from the bench is practiced, it is the transition from an elected, representative, constitutional government of laws to a rule of judges who, except in rare exceptions,[1] cannot be removed from the bench and are therefore less accountable to the law of the land and/or the will of the people. Our system allows for voting out incompetent, malfeasant or dreadful politicians and correcting any constitutional inadequacies by the process of a constitutional amendment, which involves the vote and consent of the people and representation of their states, rather than the ukase of an unelected oligarchy. In other words, it is simply not the responsibility of a judge to determine whether a law is just or not, but rather his responsibility is to apply the appropriate law and determine if said law has been broken or not. The law’s justness, morality, or fairness is determined by the people, their representatives, and the Constitution. As historian Charles Warren noted, “the Court may interpret the provisions of the Constitution, [but] it is still the Constitution which is the law, not the decisions of the Court.”[2]

Justice Antonin Scalia noted, “What secret knowledge, one must wonder, is breathed into lawyers when they become Justices of this Court, that enables them to discern that a practice which the text of the Constitution does not clearly proscribe, and which our people have regarded as constitutional for 200 years, is in fact unconstitutional?… Day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize.”[3]

The Founders wisely set up a process for making new law; it is called Congress. For changing the Constitution, the process is called a constitutional amendment, of which legislating from the bench makes a mockery. Further, these two ideas make it lucidly clear that the Founders were strict constructionists or intentionalists in their approach to the Constitution. Confusion of conflicting truth claims in the public square is preferable any time to silencing conflicting biases.

A strong attestation to an intentionalist understanding of the Founders’ perspective on the Constitution, besides their compelling asseverations,[4] was the constitutional amendment process.  The amendment process was put in place so that if they, or their posterity, recognized that they had missed something, or if something were to occur at a later time that occasioned a need to change the Constitution, the amendment process was there to deal with such eventualities. The process of amending the Constitution as spelled out in the Constitution, Article V[5] required ratification by two-thirds of both houses and by three-fourths of the states, which immediately tells us two things. First, its supermajority requirements of both houses as well as the states indicate how infrequently the Founders thought there would be a need for such an alteration. Second, it tells us that the Founders did not accept the dynamic view—that it is a fluid document to be reinterpreted according to the times—for if that was the case the cumbersome amendment process would be fatuous. “Since 1789, over 5,000 bills proposing to amend the Constitution have been introduced in Congress; thirty-three amendments have been sent to the states for ratification.  No attempt by the states to call a convention has ever succeeded.”[6]

Jefferson said to William Johnson, “But the Chief Justice says, ‘There must be an ultimate arbiter somewhere.’ True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force.”[7]



[1] There is an impeachment process that is rarely if ever used.

[2] Charles Warren, The Supreme Court in the United States History (Boston: Little, Brown, and Company, 1922-1924), 3 vols, 470-471) in Meese, “The Meaning of the Constitution”, Heritage Guide, 5. This is not meant to say that decisions by the Supreme Court lack the character of binding law, but rather that citizens and observers may consider whether said law is right or wrong.

[3] Robert H. Bork, Coercing Virtue, (Jackson, TN: AEI Press, 2003) 52.

[4] I refer to their writings like Jefferson’s second inaugural address, the First Amendment….

[5] Article V amendment of the Constitution: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

[6] Forte and Spalding, eds., The Heritage Guide to the Constitution, 286.

[7] Thomas Jefferson to William Johnson, 1823. ME 15:451, Thomas Jefferson’s Reaction to Marbury v. Madison, http://www.landmarkcases.org/marbury/jefferson.html