The CourtZero book, Chapter Seven

Here is the link to previous chapters.

Here is the link to the audio version of Chapter Seven, and here is the link to the audio version of the entire book.

And here is Chapter Seven:

Chapter Seven

A living, breathing Constitution

You may recall the five steps, mentioned earlier, between representative government and oligarchy. The myth of the living, breathing Constitution is step one. Many politicians have spoken favorably about our Constitution being both living and breathing. What could they possibly mean by that? Usually their answer is that we live in a complex and changing society, and so the very foundation of our law should be able to change with the times. That, of course, completely changes the purpose and meaning of having a constitution in the first place. The word constitution comes from the Latin word constitutio, which means fundamental principles. Fundamental principles are meant to endure, and by definition not to change easily, and certainly not change without the knowledge and consent of those who have agreed upon and are subject to those principles.

Perhaps we can agree that the United States Constitution does not, in fact, live and breathe. It is a set of rules written down on paper. It doesn’t think nor does it do anything, in the sense of a sentient being taking action. It simply is. And the Constitution is important to us, isn’t it? It is our reliable record of the things that protect us all from tyranny. It isn’t supposed to change while we’re not looking.

But, you may say, it is the courts that protect us from tyranny! We’ll get to that shortly, and let you hear from Mr. Dred Scott and some others. In the meantime, let’s assume, for the sake of argument, that the Constitution is, indeed, alive.

Since that parchment that appears in the national archives and is copied in law and history books is alive, how do we describe its motives? Is it smart? Is it fair and just? When it changes its mind, does it do so for the right reasons?

Those questions are nonsensical, of course, because the Constitution does not, in fact, live and breathe. But many in power want to behave as if it does. Since the document does not have a brain (or a soul) of its own, then the will and thinking of activists become the steering mechanism for changing the meaning of our fundamental legal principles. How can it be otherwise? Most people have neither the power nor the inclination to “evolve” that allegedly living, breathing document, and the ones who do have the power to steer and shape the meaning of the Constitution in ways that may not be very friendly to you.

It comes down to this: if we believe in a Constitution that does not change in meaning without the knowledge and will of the people, through the process of amendments, then everyone can understand the rules and know that protections against tyranny will not disappear just because someone is powerful enough to change things. If we believe, however, in a living, breathing Constitution, then only those who already have power have any real voice in defining the rules.

If you do not accept the truth of that last sentence, try this experiment. Change the United States Constitution. Go ahead, right now. Get up, and change the meaning of the law, on your own, or perhaps with the help of a close friend. You can’t, you say? Well, then, if it is living and breathing, and meant to change with the times, and you can’t do it….well, then, who can? Are they friends of yours? Can you trust them with your life and freedoms? When you hear someone talk about a living, breathing Constitution, know this: they are aware that you are powerless to do it, but you can give them permission to do what they wish with our laws. When you hear someone talk about a living Constitution, it’s about power, usually their own.