Many Americans treat the Constitution like a moving target.
Recently, I’ve faced opposition to various constitutional arguments falling into two broad categories.
1. Those who embrace the “living breathing” philosophy. These folks generally believe the constitution was meant to “flex” with the times. They will still hold fast, even tenaciously, to certain constitutional principles, but generally base their attachment to constitutional fidelity on court opinions or modern political theory.
2. Those who hold the ” impenetrable fog” point of view. People in this camp blow off constitutional arguments by asserting that we can’t really know what the founders meant. They wrap arguments in academic sounding legal theory, then justify whatever federal overreach they approve by insisting the founders might have thought it was OK.
Of course, neither of these arguments hold water. The living breathing Constitution is really dead. The Constitution is a legal document, and as such, has a fixed meaning. You can read more about that HERE.
And as for the impenetrable fog: not so much. As constitutional scholar Rob Natelson demonstrates in a brilliant scholarly article on recess appointments, with a little work, we can precisely pinpoint the meaning of constitutional language.
In fact, stable government of the people, by the people, for the people requires a static rule book. In the same way we can’t play a basketball game without fixed rules, we can’t live in a free society when the people in power get to make up and change the rules as we go along.
“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense!” – James Madison