“Progressives” who seek changes in the law that would bring about major shifts in our culture have often failed to do that legislatively. Instead they turn to the courts, and favor a dynamic interpretation of the Constitution. The view of seeing the Constitution as “living and breathing” is certainly not new in jurisprudence, as James Madison, the father of our Constitution, indicates below in a letter written to Henry Lee on June 25, 1824:
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 shapes 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 modern sense. And that the language of our Constitution is already undergoing interpretations unknown to its founders, will I believe appear to all unbiased Enquirers into the history of its origin and adoption. (1)
Meanings of the words used may change, but the intent does not. Madison says that those who are unbiased will look into the history of the Constitutions origin and adoption. The “living and breathing” approach is not faithful to the intent of the Founders. If they were wrong, then we have the amendment process, but unfortunately we have legislating from the bench.
Mark Levin in Liberty and Tyranny: A Conservative Manifesto says that the following questions may be asked to those who promote this type of judicial activism:
If words and their meaning can be manipulated or ignored to advance the Statist’s political and policy preferences, what then binds the statist’s words? Why should today’s law bind future generations if yesterday’s law does not bind this generation? What should judicial precedent bind the nation if the Constitution itself does not? Why should any judicial determination based on a judge’s notion of what is “right” and “just” bind the individual if the individual believes the notion is wrong and unjust? Does not lawlessness beget lawlessness? Or is not the Statist really saying that the law is what he says it is, and that is the beginning and the end of it? And if judges determine for society what is right and just, and if their purpose is to spread democracy or liberty, how can it be said that the judiciary is coequal with the executive or legislative branch? (pg. 39-40)
Madison said that the Constitution that was accepted and ratified by the nation, that alone is the legitimate Constitution. Not case law made by activist judges.
1. The Quotable Founding Fathers: A Treasury of 2,500 Wise and Witty Quotations from the Men and Women who Created America, Bucker F. Melton, Jr, Ed.