The first step in setting the argument up is establishing the absolute, universal truth that only legitimate rights are the unalienable rights of life, liberty, and the pursuit of happiness. I did that when I discussed rights in Part II of my writings. Creating man made rights that invariably place an imposition on unalienable natural rights clearly violates this sacred and absolute truth. Disagreeing with that premise would require one to justify restricting (or in some cases taking away) god given rights – an intellectually indefensible position!
“Flexibility” of the Constitution:
In order to make an intellectually honest philosophical argument, I will present both logic and evidence based arguments to bolster my case.
Logical Argument:
As the original intent theory of originalism asserts, a written constitution is and should be consistent with what was meant by those who drafted and ratified it. This is the key point in the argument as I see it. The dynamic view of the Constitution completely ignores the written evidence of what the Founders meant. This is especially true as it pertains to the universal truths embodied in the unalienable rights – the cornerstone of our founding documents. An unalienable right is absolute and does not change in its meaning over time.
All Founding Documents are mutually inclusive (or inter-related) and must stand or fall together. The over-riding concern is one of preserving the first principles. Therefore, any new interpretation of the text must not interfere with our natural rights – otherwise, without the unalienable rights and first principles fully intact, the Constitution is rendered null and void.
As Justice Antonin Scalia – likely the most scholarly of the current crop – puts it:
1. The purpose of a Constitution is to bind us, not to be flexible. The Constitution offers its own way of being flexible and that is through the amendment process.
2. The "Living Constitution" has no guiding principle upon which to guide its evolution.
3. The "Living Constitution" allows for judicial activism; effectively, legislating from the bench.
4. The "Living Constitution" poisons the appointment and confirmation of judges. If there is no fixed meaning in the Constitution, then the best thing partisan politicians can do is to get judges on the courts that agree with their political beliefs. Competence and character are no longer the main issues in judicial confirmation hearings.
In holding with Justice Scalia’s wisdom, you cannot have some right to life or liberty; you either have full rights or effectively none at all. Therefore, any radical departure from the original intent that clashes with any of our unalienable rights is invariably unconstitutional (regardless of SCOTUS decisions).
It is nevertheless a common progressive conviction that with the changing times - or as you exemplified it, with evolution of technology and how it can be abused to infringe on personal privacy – the U.S. Constitution must be flexible, too. Unfortunately, such justifications fall far short of a philosophical justification.
Our unalienable rights are endowed upon us by God (or nature if you prefer like I do); yet activist SCOTUS, ever since FDR - the most damaging president as far as the Constitution is concerned - stacked the Court in the 1930s, have strayed away from original intent in the name of progressivism (reform through government action) – an ideology that conflicts with the original intent.
Progressives usually argue for the “living, or dynamic nature of the Constitution” in order to justify creating new social ‘rights’ under the pretext of the vagueness of constitutional clauses such as the General Welfare Clause, the Commerce Clause, and Equal Protection Clause among others. In truth, there is little, if any, ambiguity to the Constitution if one looks for confirmation of its original (and only) intent in the Declaration of Independence and the Federalist Papers by going through a logical reasoning process.
In sum, the core philosophy of our founding principles rests on one key sentence in the Declaration of Independence:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.
Unalienable rights take precedence and cannot be fringed upon without violating them. Any right or entitlement that creates an imposition (of any type) on any member of the society is by definition not a right!
Therefore, any governmental action must not violate the unalienable rights in order not to violate the spirit of the U.S. Constitution (and our founding principles).
The original intent of our founders can not and should not be misconstrued as there is substantial and overwhelming written evidence of what Founding Fathers intended (and this last part is a challenge to any progressive to prove otherwise).
Evidentiary Argument:
Just about every quote by Founding Fathers points to the dangers of government that goes beyond its intended, enumerated powers. James Madison, the father of our Constitution said: “Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.”
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A case-in-point: Programs enacted under the Social Security Act.
The Social Security Act (SSA) of 1935 gave birth to several prominent social welfare and insurance programs (SSI, Disability Insurance, Unemployment, Food Stamps, Medicare, Medicaid, and SCHIP) between the 1930s and present day. These entitlements, taken together, account for the lion share of the annual federal deficit and virtually all the unfunded liabilities, totaling over $100 trillion dollars. Their constitutionality has largely been justified on the progressive side by the General Welfare Clause of the U.S. Constitution.
More specifically, the Preamble to the U.S. Constitution lists promotion of the general welfare as one of its purposes. So, as the progressive rationalization goes, it is the government’s duty to not only provide a basic safety net but a comprehensive package of social welfare programs that take care of the needy (and the not-so-needy alike) regardless of their circumstances. (This is the same progressive view that prevails in social democracies of Europe; one that is triggered by an inability to accept human beings as unique creations who may naturally attain differing outcomes.)
In reality, at least as originalists see it, the General Welfare Clause or the Spending Power Clause, does not grant Congress the power to legislate for the general welfare of the country; that is a power reserved to the states through the Tenth Amendment.
The same supposed (and as I will demonstrate, bastardized) progressive interpretation of “general welfare” crumbles in no time when we read (on multiple occasions) the following quotations attributed to James Madison – the father of our Constitution:
“With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”
“If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions”
“If Congress can employ money indefinitely to the general welfare... they may appoint teachers in every state... The powers of Congress would subvert the very foundation, the very nature of the limited government established by the people of America.”
“…The government of the United States is a definite government, confined to specified objects. It is not like the state governments, whose powers are more general. Charity is no part of the legislative duty of the government.”
Some other relevant (directly or indirectly) quotes among literally dozens attributed to our Founders are:
Congress has not unlimited powers to provide for the general welfare but only those specifically enumerated. – Thomas Jefferson
“To take from one, because it is thought his own industry and that of his fathers has acquired too much, in order to spare to others, who, or whose fathers, have not exercised equal industry and skill, is to violate arbitrarily the first principle of association, the guarantee to everyone the free exercise of his industry and the fruits acquired by it.”
-Thomas Jefferson
“A wise and frugal government … shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government.”
-Thomas Jefferson
“The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If ‘Thou shalt not covet’ and ‘Thou shalt not steal’ were not commandments of Heaven, they must be made inviolable precepts in every society before it can be civilized or made free.”
-John Adams
“When the people find that they can vote themselves money, that will herald the end of the republic.”
-Benjamin Franklin
The democracy will cease to exist when you take away from those who are willing to work and give to those who would not.
- Thomas Jefferson
They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.
- Benjamin Franklin
I think we have more machinery of government than is necessary, too many parasites living on the labor of the industrious.
-Thomas Jefferson
Even the most progressive of the Founding Fathers – Hamilton – cannot be attributed any written sentiment that gives credence to the present day progressive defense for a “living constitution”.
In 1833, Justice Story concluded that “the General Welfare Clause is not an independent grant of power, but a qualification on the taxing power which included within it a power to spend tax revenues on matters of general interest to the federal government”. Moreover, the SCOTUS has held that the Preamble to the U.S. Constitution "has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments"
Yet, despite the certitude that creating new rights often violates man’s natural rights; and unambiguous evidence of the Founder’s intent, the intellectually bankrupt argument advanced by progressives in justifying the constitutionality of SSA related legislation has carried the day at the SCOTUS.
In order to accept the progressive understanding of the General Welfare Clause in the U.S. Constitution, one would literally have to dismiss its authors’ own sentiments as well as key earlier findings of the SCOTUS. A paradoxical position, indeed!
My challenge, therefore, to any progressive is to try and correlate between the clear sentiments of our Founders regarding general welfare as quoted above and their own views of it.
Use of the Amendment Process:
The U.S. Constitution’s only flexibility is in that it can be amended as needed as the Founders prescribed.
Since the original designers of the Constitution provided for the process of changing it, they never intended for their original words to change meaning.
The Founding Fathers realized that they could not possibly foresee all the societal changes that might require amending the U.S. Constitution. Consequently, and wisely, they provided for an amendment process (Article 5) that would purposefully be difficult (so that the supreme law of the land could not be changed at the whim of a few for wrong reasons), but nevertheless possible as we know from the history of it from the Bill of Rights up to the 27th Amendment.
The difficulty of the amendment process has led to over 9,000 amendment proposals to be defeated since 1789. Politicians during the first century of the union were on the most part faithful to the process. However, starting in the early 20th century with the advent of American progressivism as an offshoot of Fabian socialism, everything changed.
The dilemma of progressive goals being inconsistent with the original intent of the U.S. Constitution had to be dealt with in an unorthodox fashion as Americans in general would not support what they rightly viewed as socialist goals. The amendment process was therefore routinely by-passed starting in the mid 1930s.
I like to call this the coup d’état that America ignored; or the beginning of the structural decay of our republic. Increasingly, SCOTUS (as well as lower level courts) and the executive branch through the use of regulations (which are not law but carry the weight of law) bypassed what our Founding Fathers designed in order to maintain the integrity of the original intent of our Constitution.
This violation of the original intent has been mainly on the progressive side of the ledger (naturally since it is progressive ideals that clash with the first principles and not those of the free market, classical liberal proponents), but also has not been immune from violations by the big government establishmentarian Republican presidents in the past (see expansion of Great Society programs under Nixon and creation of Medicare Part D supported by G.W. Bush).
As such, and for different reasons, I agree with your sentiment that the amendment process should be adhered to (strictly) and laws should only be made by the Congress after careful deliberations and their constitutionality tested (if needed) by an intellectually honest SCOTUS. Our Republic worked just fine before such shenanigans; after all, slavery, as just one example, did not require the excuse of the interstate commerce clause (Article I, Section 8) to be abolished. It was done the right way: through amending the U.S. Constitution.
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And lastly, but perhaps most powerfully, why the original constitution does not allow for judicial interpretation in any form can be found in history of the high court. The Supreme Court's power for constitutional review, and by extension its interpretation, did not come about until Marbury v. Madison in 1803. The concept for a "living constitution" therefore relies on an argument regarding the writing of the constitution that had no validity when the U.S. Constitution was written.
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