Our Living, Breathing Constitution

The argument that the Constitution is a living document that may be reshaped from time to time to keep it relevant to a rapidly changing culture is a pernicious idea, the preposterous nature of which is patently obvious once you consider the nature of law. Laws, after all, are not mere suggestions. They are only as effective as their enforcement is strict and reliable. Any re-application of the law must be handled carefully with great concern to preserve the original intent of the law. A prime example is the general welfare clause.

The Founders intended for the general welfare clause to promote, well, the general welfare. That idea is not hard to parse, but it seems to be the part of the Constitution that is most vulnerable to mischief. If their intent had been to promote the welfare of politically correct groups (meaning, of course, those whose members can be counted on to donate generously and vote “correctly”), they would not have used the adjective “general.”

Nevertheless, general welfare has morphed into special welfare entitlements – a fond emotional idea that was apparently all too tempting in the days of the Great Depression. By now the concept has become so “modernized” that some proposals that would have sounded ultra-liberal in the nineteenth century seem downright conservative as we enter the twenty-first.

At the same time, the Constitution does require some careful flexibility in application. While the principles of the Constitution stand, those principles will apply differently from year to year and decade to decade. The law of the land must not be tampered with to suit every whim, as several Founders were prescient enough to admonish us, but when our culture changes to the extent that some revision is rationally defensible, prudence might dictate some flexibility. One recent example is the Supreme Court’s understanding of the Second Amendment.

Walter Williams notes (in his article, “The Founders’ Vision Versus Ours“) that in writing the majority opinion for the recent Supreme Court’s decision upholding our right to keep and bear arms, Justice Alito said, “Individual self-defense is the central component of the Second Amendment.”

Williams, as would some other strict constructionists I suppose, disagrees – not with the conclusion, but with its premise – insisting that, contrary to Alito’s assertion, the main purpose of the Second Amendment is to protect ourselves from the federal government, not street thugs. But even though that rationale might once have been valid, the typical citizen in today’s culture is threatened more by thugs than by the army. The idea of defending one’s home was there to begin with. It merely applies differently today than in the eighteenth century.

None of the enumerated powers of Congress permits it to disarm citizens (and of course the Second Amendment explicitly prohibits it), since this would restrict their freedom to defend themselves and protect their families. The freedom of citizens to defend against assailants should surely be preserved, constraining any arrogant bureaucracy from disarming them under the absurd pretext that such constraint would be for their own protection.

This is one case that merits a careful re-application of the original intent – as Alito has – to make the Constitutional principle relevant to the reality of today. But such modifications should be rare and applied most cautiously, typically by constitutional amendment.

The CJS Forum seeks to promote an open exchange of ideas about the relationship between faith, culture, law and public policy. While all the articles are original and written especially for the CJS Forum, they do not necessarily reflect the views of the Center for a Just Society.

Picture above from Wikimedia Commons licensed under US Public Domain.