Should the Constitution be a Living Document?

© 2017 Steve Feinstein. All rights reserved.

Although President Kennedy’s inaugural speech in January 1961 is more famous (“Ask not what your country can do for you….”), President Eisenhower’s farewell speech from January 1961 contained many themes and ideas that could still be thought of as being quite relevant, even today.

Excerpts follow:

Throughout America’s adventure in free government, such basic purposes have been to keep the peace; to foster progress in human achievement, and to enhance liberty, dignity and integrity among peoples and among nations.

Progress toward these noble goals is persistently threatened by the conflict now engulfing the world. It commands our whole attention, absorbs our very beings. We face a hostile ideology global in scope, ruthless in purpose, and insidious in method. Unhappily the danger it poses promises to be of indefinite duration. To meet it successfully, there is called for, not so much the emotional and transitory sacrifices of crisis, but rather those which enable us to carry forward steadily, surely, and without complaint the burdens of a prolonged and complex struggle – with liberty the stake. Only thus shall we remain, despite every provocation, on our charted course toward permanent peace and human betterment.

Crises there will continue to be. In meeting them, whether foreign or domestic, great or small, there is a recurring temptation to feel that some spectacular and costly action could become the miraculous solution to all current difficulties:

- A huge increase in the newer elements of our defenses

- Development of unrealistic programs to cure every ill

- A dramatic expansion in basic and applied research

 These and many other possibilities, each possibly promising in itself, may be suggested as the only way to the road we wish to travel.

Although Eisenhower was obviously referring to Soviet-backed communism with his use of the phrase “hostile ideology global in scope, ruthless in purpose, insidious in method,” that phrase could just as easily refer to current Islamic terrorism or Iranian/North Korean nuclear adventurism.

Additionally, his opining that there might be a great, overreaching hope of a “miraculous solution” to the problems facing the country is evidence of the tempting thought that pursuing successful Government-sponsored outcomes—no matter how questionable their chances for success—was just as prevalent 55+ years ago as it is today.

All of which brings up the question of how useful are older documents and thoughts—past speeches, old papers, even the Constitution—in providing useful, relevant guidance and example to current situations?

Many conservatives are quick to state that the Constitution remains perfectly relevant, that the principles laid out by the Founding Fathers are timelessly brilliant and insightful, and that the basic rights and guidelines established by the Constitution and its amendments are still applicable today, even to situations not specifically envisioned by the Framers.

Similarly, many liberals are of a different mindset completely, thinking that while the Constitution and other older documents and speeches are interesting and worthy of academic study, they can’t necessarily be taken in their totality as serious guides for today’s actions. Those who question the Constitution’s modern-day relevance often cite that although it may be a useful teacher for presenting issues and philosophies that were in effect at the time of its enactment (late 1700’s), the pace of change in society continues to accelerate, sometimes so fast that the Constitution—while perhaps worthy of review and contemplation as an historical document—is simply not equal to the task of providing a useful legal roadmap, or in too many instances, of providing any substantive guidance to modern culture and law at all.

Inherent in modern-day liberals’ dismissal of the notion of the “wisdom of the Founding Fathers” is their (liberals’) feeling that the societal norms that were in effect at the time of the Constitution’s authorship (such as widespread slave ownership, rampant sexism by current-day standards— exemplified by the lack of women’s voting rights and their not being allowed to hold elective office–along with profound gender, racial and ethnic inequality in professional and educational opportunities, etc.) render invalid any legally-binding positions offered by the Founders.

In a fascinating question-and-answer event in 2005 between Supreme Court Justices Antonin Scalia and Stephen Breyer, the question was broached as to when and how the concept of a “living” Constitution came to be. Scalia opined that the Court first began employing relativism to a significant degree starting around 1945, right after World War II. As Scalia says,

“…the Court adopted the notion that the Constitution is not static. It doesn’t mean what the people voted for when it was ratified. Rather, it changes from era to era to comport with—and this is a quote from our cases, “the evolving standards of decency that mark the progress of a maturing society.” I detest that phrase, because I’m afraid that societies don’t always mature. Sometimes they rot. What makes you think that human history is one upwardly inclined plane: every day, in every way, we get better and better? It seems to me that the purpose of the Bill of Rights was to prevent change, not to foster change and have it written into a Constitution.”

Expanding on Scalia’s worry that “societies don’t necessarily mature,” there is ample evidence on both sides of that argument. Advanced technology has certainly made many facets of current American life better than our forbearers could have envisioned in their wildest dreams. But while professional, societal (choice of housing location, religious freedom, recreational associations, etc.) and educational equality and opportunity have improved immeasurably in the United States since the late 1700’s, many aspects of American society have demonstrably not “evolved and progressed.” The unquestioned rise in public coarseness and vulgarity, the frighteningly high percentage of out-of-wedlock births, the precipitous decline in formal religious practice and the resultantly concomitant drop-off in the practice of ethical, compassionate behavior towards one’s neighbors, co-workers and schoolmates, the rise in addictive drug use, the truly horrifying increase in personal violence and sexual assaults, the indifference to the environment, the valuing of material acquisition over personal integrity and kindness, these are all unequivocal indications of a society that is not evolving and progressing. Technological advancement does not equate to societal evolution.

So, the question remains: Are we a society that is guided by timeless, unique, permanent principles of basic rights as put forth by the Founding Fathers, or are our founding and guiding documents “living” documents whose meaning should change as dictated by current circumstance and outside consensus?

The Constitution has proven uniquely prescient and durable in its ability to anticipate and provide a bedrock for our legal guidelines. Although some may say the question of living vs. static unfairly characterizes things as being an either/or situation, others will be just as quick to point out that evolving standards and ‘living’ documents add up to no standards at all.

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