Whenever I rail about the absurdity of a “living breathing Constitution,” somebody will inevitably scold me, reminding me that the Constitution was written over 200 years ago and it has to change with the times.
After all, the founding generation could never have imagined computers, airplanes, or “assault rifles.”
This isn’t wrong. The world has changed a great deal in the years since the ratification of the Constitution. But as it turns out, the founders were pretty smart people and they actually anticipated that the world would change, and they recognized the Constitution might have to change with it. So, they built in a process for just that purpose.
You will find it in Article V – the amendment process.
“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.”
But of course, amending the Constitution is difficult.
And that was by design.
They didn’t want the Constitution changing with every shift in the political winds.
The whole purpose of a written Constitution was to ensure that the authority of the new government would remain limited to the specific powers enumerated (i.e. written) in the document. It was an intentional pivot away from the British system that relied on an unwritten “living breathing” constitution. That didn’t work out so well for the Americans when the king and parliament decided that it would change the way it taxed the colonies and began meddling in their internal affairs. The American colonists cried foul, insisting that the new powers exercised over them violated the constitution. The British government basically said, “Oh yeah? Well, we decide what the constitution is and you’ll like it.” The colonists didn’t like it so they fought a war to free themselves from what they considered British tyranny. Then they established a government with a written Constitution to ensure that it wouldn’t follow the same tyrannical path.
I imagine the founding generation would be pretty disappointed to learn that the government circumscribed by written constitutional limits has evolved into the very “living-breathing” system that they fought a bloody war to free themselves from.
Instead of following the constitutional path and changing the Constitution through the amendment process, modern politicians simply assert new powers, and the federal courts back them up, all in the name of “better government.” They change definitions and invent “constitutional principles” out of thin air. Progressives (from both the left and the right) applaud this insane process because it allows them to advance their various political agendas without reckoning with those pesky limits on power written in the Constitution.
But those pesky limits on power were meant to be reckoned with. That was the whole point of the Constitution to begin with. And making it difficult to change the Constitution, to expand federal power, and to extend its scope – that was on purpose.
