“Conservatives” and Republicans often rail against the “liberal” belief in a “living breathing” Constitution.

And rightly so.

A written constitution operates just like a contract. Its meaning remains static unless amended, and the understanding of those who entered into the contract at the time of its approval governs that meaning. It does not change over time. The people must make changes via the amendment process.

Contrast that with an unwritten or “uncodified” constitution. England does not have a written constitution. Its government operates based on custom, statute, usage and precedent. Who decides the meaning and proper operation of “constitutional” government? The judiciary, government committees and legal experts. This type of government offers a great deal of elasticity. When it faces a problem, it need not worry about violating a written constitution with static meaning. The Parliament can simply pass new statutes. Or judges can formulate a new legal maxim. The judiciary takes precedence in this kind of system, setting legal precedent and guiding the evolution of the government.

That sounds more like the system we currently operate under here in the United States than the one set up by the founders. We no longer have constitutional government. We have government by judiciary. Court precedent dictates. Congress passes acts and everybody assumes them legitimate unless the courts say otherwise. If the nine black-robed federal employees approve a federal power, everybody accepts it as valid – regardless of the original meaning of the Constitution. Original meaning means nothing. The judges rule by judicial fiat.

The United States does, in fact, operate under a “living breathing” constitution. The document still exists under glass in the National Archives, but the the government actually runs based on an uncodified constitution molded and defined by judges.

As I said, “conservatives” rail against the “living breathing” constitution. But far too many enable it by insisting that the Supreme Court has the final say on constitutionality and rejecting the doctrine of nullification. When judicial precedent rises to the same level as the original meaning of the Constitution (and the Court actually claims its opinions rise to that level), you no longer have a written constitution. You live under an uncodified constitution, its meaning floating merrily along on the whims of nine judicial oracles.

A federal government that can define the extent of its own powers rises to the level of all-powerful. And that’s exactly the system “conservatives” like those over at the Heritage Foundation and other prominent right-leaning organizations support when they insist on absolute federal judicial supremacy.

Thomas Jefferson rightly pointed out that it would prove impossible to maintain a federal government of limited powers if that government itself determined and defined the extent of its own authority.

The government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

History proved him correct.

So the next time you hear “conservatives” railing about the “liberal” invention of a “living breathing” Constitution, ask them if they support state nullification. When they tell you, “No, the Supreme Court and the Supreme Court alone decides constitutionality,” you can look them in the eye and tell them they are part of the problem.

To learn more about the solution, pick up a copy of Our Last Hope: Rediscovering the Lost Path to Liberty.


Mike Maharrey

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