David Rodeback's Blog
Local Politics and Culture, National Politics,
Tuesday, January 10, 2006
The Rule of Law, or 'Living' Is Libspeak for 'Dead'
Our question today is, "Is the US Constitution a living document or not?"
The Alito inquisition (more officially, the confirmation hearing of Supreme Court nominee Judge Samuel Alito) has begun. In honor of the auspicious event, here is a discussion of one theme that will come up -- probably in the Senate Judiciary Committee hearings, but definitely among the talking heads who will analyze the hearings nearly to death (theirs and ours). It has to do with that troublesome document an upstart convention ratified in 1787, and under which George Washington was inaugurated in 1789 as our first President. (In between, it was ratified by the states, after long and substantive debates which are still well worth reading.) I mean, of course, the United States Constitution.
Our question today is, "Is the US Constitution a living document or not?"
Ordinary people may reason along these lines: The Constitution is flexible enough to have survived for 216 years, with only 27 amendments, and our federal government's basic structure, and the rights guaranteed us, are still more or less recognizable as those set forth in the Constitution. It is still our governing document, etc., etc. So of course it's a living document! Its longevity makes it one of the political wonders of the world.
Be advised, however, that when we hear the term "living Constitution" in most modern contexts, it doesn't mean what ordinary people think it means. In fact, living in this context means something very much like dead. Most of those who speak of a living Constitution are actually saying that the supreme law of the land is not bound by the meaning of the words and sentences in it. Rather, it means whatever our current sensibilities want it to mean. In other words, the actual text, the actual law, is irrelevant. It might as well be dead.
Admittedly, there are some problems with the other end of the Constitutional spectrum, too, especially "original intent." The Constitution was the product of debate and compromise on the part of dozens of men. A thorough reading of their debates suggests that their intentions were all over the map. They agreed on the need to have a more effective national government, but disagreed on many particulars. So how do you pin down a specific intention and say that dozens of people who thought differently collectively intended this to mean thus-and-so?
On the other hand, even allowing for the fact that the meaning and usage of words evolves over time, most of the Constitution is quite accessible and understandable to the thoughtful lay reader -- especially the lay reader with a good dictionary, which describes the histories of words.
Consider the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be contrued to deny or disparage others retained by the people." It's pretty straightforward: Just because the Constitution guarantees certain rights to the people (or rather forbids government from usurping certain rights held by the people) doesn't mean that the people don't have other rights not mentioned in the Constitution.
Now, the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." Again, it seems pretty clear: If a power is not explicitly given by the people to the United States government in this Constitution, then the US government does not have that power. If anyone besides the people has it, it is the states.
The Tenth Amendment is much ignored, to be sure. For example, I have read the entire Constitution many times, and never once have I seen anything in it that could reasonably be construed as giving our national government the right to tax us in order to provide for the retirement income of senior citizens. I'm not saying that the people could not delegate that power to a government, just that they have not given it to the US government by enumerating it explicitly in the US Constitution. (There is a reference to "general welfare" in the Preamble, but the Preamble is merely an introduction, stating the purposes for which the document is adopted; using a phrase in it as if that it were in an article or an amendment is quite a stretch.)
This is not just a theoretical example; the Tenth Amendment was seen as a major barrier to the Social Security Act of 1935. As the Social Security Administration's official historian puts it, "The constitutional basis of the Social Security Act was uncertain." But a 1936 decision by the Supreme Court on another New Deal case observed, "The power of Congress to authorize expenditure of moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution." With that precedent, the Constitutional future of Social Security was, ahem, secure. The first time I read that phrase -- a long time ago in a constitutional law class, I believe -- I did a bit of a double-take, because here is what those words say to me: The power of Congress is not limited by the Constitutional limits on the power of Congress.
Society evolves, values evolve -- sometimes for better, sometimes for worse. When the Constitution confronts situations which it does not seem to have contemplated, but which need to be addressed, we can go one of two ways.
If we're committed to the rule of law, we take the existence and clear meaning of Constitutional text seriously. "Nothing is more important for our republic than the rule of law," Judge Alito said today, and there's an important sense in which he's absolutely right. If the Constitution is inadequate to the times, we amend the Constitution -- carefully, of course -- until it is adequate. For example, when it becomes possible (it having always been desirable) to abolish slavery, which the Constitution originally allowed for, we amend it to abolish slavery. It's not easy or quick, but it's what we do. In our current politics, some but not all conservatives advocate this rule-of-law approach.
The practical alternative is not to ignore the document altogether; that doesn't play well in Peoria. But with a little more effort, we can stretch and distort and befog Constitutional language, until it seems to have no fixed meaning at all, or to mean exactly the opposite of what it obviously means, in order to make it appear to fit what we want to do. Scholars, lawyers, and judges are exceptionally good at this. The law itself doesn't matter; only our policy objectives do. In our system, this "rule of man" (the unmarked meaning of man which includes women) tends to mean the rule of nine unelected, life-tenured men and women who comprise the Supreme Court of the United States. In our politics, this is the position of most liberals and some conservatives -- all who for whatever reason, with whatever objectives, prefer activist judges who make law, not just adjudicate it. Nearly all of the talk about a "living Constitution" comes from this group.
Rule of man? Rule of law? Why does it matter? For this reason, principally: History and philosophy alike demonstrate that if freedom is to endure from ruler to ruler, the rule of law must prevail; rulers themselves must obey the law. Under the rule of man, freedom, justice, and other essentials are almost entirely at the whim of the ruler. As we have seen, it is essentially impossible to guarantee that every successive ruler will be wise and of good character.
In purely practical terms, our national and local commitment to the rule of law is seriously in question. What our immigration policies should be is debatable, but whatever laws we have ought to be enforced (not completely rigidly, not inhumanely, but reasonably enforced). We're not willing to do that. We can debate whether Federal gun control laws should even exist, or whether they should be more or less strict than they are. In any case, we have such laws, but mostly lack the will to enforce them.
Locally, in American Fork, we have zoning restrictions and nuisance ordinances which the City has for years been unwilling to enforce, with consequences which will doubtless be fodder for another day. I hope this will change under the current administration, but it won't be easy. Even if the City itself decides it is serious about nuisance abatement, and also finally proves willing and able to abide by its own rules on its own properties, and proceeds wisely, so that the change is rather tame, there's at least one major rule-of law matter which won't be tame at all. Eradicating all those illegal apartments (such as the ones in single-family residential zones) will involve a bitter political and possibly legal battle -- and not a short one.
How did we get into this mess? We did at least two of these three things: We passed laws we were not willing to enforce. Or we passed poor or unclear laws which are difficult or impossible to enforce, and we did not fix them. Or we elected leaders who, for whatever reason, were unwilling to enforce good laws.
The essential principle here is this: Don't make laws you can't or won't enforce. If you have laws which you want or need to enforce, but which are difficult or impossible to enforce, fix them and then enforce them. But if, finally, you are unwilling or unable to enforce a law, repeal it. To do anything else weakens the rule of law. That, among all the slippery legal and political slopes we may fear, is the the scariest of all.
Copyright 2006 by David Rodeback.