The Constitution, Dead or Alive?

Supreme Court Justice Antonin Scalia caused a commotion recently when he said he tells visiting school children that the Constitution is “dead, dead, dead.” When the children share what they have been learning—“The Constitution is a living document”—the Justice shares what he has been learning and pronounces it DOA. No doubt sessions with the school counselor are necessary to help the children recover from the Justice’s insensitive remarks.

Public policy debates are often decided, not by the merits, but by who seizes the rhetorical high ground. Here is a rhetoric tip: “Living” is better than “dead.” Ask any child: “Who is a friend of the Constitution, those who say it is living or those who say it is dead?” Debate over.

But “living document,” the favorite slogan of judicial activists on and off the Court, is a misnomer. When progressives (there’s another misnomer for you) say “living,” they mean it the same way a philandering husband means it when he says his marriage vows are “living.”  They mean it the same way progressive theologians mean it when they say the Bible is “living.” When God says His word is “living,” He means it has its way with us. (Heb 4.12.) When progressives say the Constitution is “living,” they mean we have our way with it (with “we” meaning any five Justices).

This is how the “penumbra” of the Constitution comes to trump the words of the Constitution, and rights never mentioned (“privacy” for example) trump rights expressly protected (“life” for example). And this is why most all the major social make-overs of the last fifty years have come through the Court. Why climb the long, steep slope of constitutional amendment when you can just “locate” new meaning in the Constitution? But the very fact that the Constitution contains an amendment process presupposes that the Constitution has set meaning—it says what it means and means what it says. And the process of amending it was meant to be long and hard. (It seems the founding fathers were not nearly so impressed with a simple majority as we are.)

When is the Constitution really alive? When the Justices recognize that it has actual meaning which they seek to apply? Or when the Justices care not that it has actual meaning, but seek to infuse it with whatever new meaning they deem best? The fact that progressive Justices may agonize before infusing the Constitution with new meaning doesn’t change the fact that they are rendering it a dead document.

Behind the rhetoric, you can see that the progressive idea of “living” means dead. And Scalia’s idea of “dead” means living. Perhaps the school children should show how well they have learned their lessons by giving “living” meaning to their teacher’s instructions. The children would learn soon enough that when a word is really important, it isn’t living unless it is “dead.”