Site Meter
Fritz Feds

Wednesday, August 27, 2003

What good is a living Constitution? Over at the Volokh Conspiracy, BU law professor Randy Barnett makes a pretty persuasive case for the necessity of a static Constitution here and here. After all, what is the point in having a document that purports to place limits on the government if those limits can increase or decrease based on any reason that strikes the fancy of five Supreme Court justices?

As Barnett puts it:

Limiting the power of lawmakers either is or is not a desireable goal. Most everyone besides committed totalitarians believe such limits are appropriate and they differ mainly on what the limits should be. And putting these limits in writing either is or is not an effective means of achieving this goal. My point is that, written constraints are only an effective means if the persons being constrained cannot change them on their own.

This leads to the proposition that the meaning of the writing must remain the same until it is properly changed--and it is improper for the actors being bound--judges, legislatures, executive officials--to change them on their own and even in collaboration with each other. This proposition is functionally equivalent to original meaning originalism, which is based not on the authority of our or, in my case, other peoples' dead ancestors, or of a supermajority, but on the value of preserving this structure constraint on power.

This discussion reminds me of something that I noticed about the student group description of the American Constitution Society chapter here at the University of Minnesota Law School.

In response to the conservative voices that have been setting the judicial agenda, ACS holds that the Constitution is a living document that guarantees the rights of the people and is ever responsive to the needs of a dynamic population.

How can the Constitution simultaneously be a "living" (and thus changing and changeable) document and "guarantee[]" anything?


Comments: Post a Comment