The United States Constitution is a difficult document to amend and intentionally so. There is wisdom in making it difficult to change things rapidly. It gives people and society time to adjust. It keeps things from bouncing from on extreme to another with every change of administration or political party in power.
The Constitution was meant to be a limiting document. It was meant to rein in the power the federal government and in the Bill of Rights remind the government of some of the fundamental rights of US citizens. Because of its built-in means of change the US Constitution actually is alterable and in a way alive because it can slowly evolve to become what society needs it to be. But this is not what is meant by “living document” in contemporary political terms.
Living = redefinable = unlimited
In the modern sense, a living documents is one that means what people believe it means by today’s language and interpretation, not what it meant originally. That sets a very dangerous precedent and removes a giant check against federal overreach. Not only does it effectively sidestep the important process of amending in favor of something much less stable, It means the government is allowed to do whatever it can interpret it can do.
Consider the old-time phrase “by-and-by”. It used to mean immediately. Now it means sometime later, potentially much later. If a governing document used a phrase like by-and-by to describe the right to a speed trial for example a living document would have the opposite meaning of its original intent. This is one reason why original intent is important. It doesn’t keep things stuck in the past. It forces government to use the methods provided to amend and alter it.
A government that reinterpret its limits is unlimited. It can do whatever it wants with the power it has. It doesn’t take much imagination to see some truly terrifying prospects in that. Just imagine unchecked power in the hands of the worst kind of people, not just those who disagree with everything you believe political. I mean the WORST kind of people. The ones who would put you in freight cars and send you to special camps because of who you are or what you believe. It may be a hyperbolic example, but the precedent is not.
Treat it like a Mortgage
Would you sign a “living” mortgage document or a “living” car loan if it could be changed or altered by the other party to mean the opposite of their original intended meaning without allowing you any legal recourse? Hopefully not. The whole purpose of a loan document is to limit the relationship between you and lender. It defines and clarifies what can and can’t legally be done. It would be perfectly meaningless and even entrapping if it could mean whatever the lender wanted it to mean.
It sounds crazy but this is exactly what has happened to the general welfare clause of the Constitution.
What Madison Meant
James Madison, the principle author of the constitution, made its intent perfectly clear. “Promote the general welfare” means the authority of the Federal government to do those things enumerated in the constitution and nothing else. It was meant to express the limits of federal power, just the rest of the constitution. However this statement is frequently taken out of its original context is used as justification for what amounts to unlimited government.
It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,'' amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.
-Federalist Papers 41
People took it out of context then, just like they take it out of context now. If “promote the general welfare” can mean anything the current leadership deems as good for the people then anything goes.
The Faustian Deal
Even for those who are interested in expanding central federal power using a living document as the means is not
It is setting up a dangerous precedent. Government that can arbitrarily change the meanings of words can change the rights that it purports to uphold or guarantee to its citizens. Supporting a “living document” interpretation of the Constitution is a Faustian bargain. It can and inevitably will give a future, unfriendly government legal power to change the Constitution without the safe guard of the original intent and meaning, and without the need to get the kind of broad support necessary to amend it. That kind of document is no protection from tyrannical government. In fact it enables it by giving it credence and president.
You may or may not like what it says, but there are only two legitimate ways to change the constitution - the process of amending it and the peoples’ right to alter or abolish. Allowing current politicians any other method is like signing a living loan document. And hopefully we can all agree that is terrible idea.
