Does the Constitution “Grow”?

October 5, 2000

Debates between presidential candidates are so ballyhooed in advance that they are always a letdown when they actually happen. But the first Gore-Bush debate did bring a crucial question to the fore.

Overall, I thought Gore outperformed Bush. In a word, he took charge. He controlled the debate and spoke well. Bush was on the defensive and was less articulate, with small verbal stumbles (though no major “gaffes”).

But at one point Bush came close to putting an important thought into words: “I’ll put competent judges on the bench, people who will strictly interpret the Constitution and will not use the bench to write social policy.... I believe that the judges ought not to take the place of the legislative branch of government, that they’re appointed for life, and that they ought to look at the Constitution as sacred.... I don’t believe in liberal activist judges. I believe in strict constructionists.”

Gore replied that “in my view the Constitution ought to be interpreted as a document that grows with our country and our history.”

Neither candidate explained his position very well. But Bush had it right, in essence. The Constitution is the fundamental law for the federal government. If that government’s own courts can arbitrarily change its meaning, the government becomes a law unto itself — that is, a lawless government, a government of men, not of law. Alexander Hamilton said that one of the advantages of our Constitution over the unwritten British constitution was that ours would be made by the people and therefore “unalterable by the government.” But we have grown accustomed to seeing the government alter the Constitution to suit the preferences of the courts.

Gore’s view of the Constitution as a document that “grows” is a liberal cliché. What does it really mean? Organic metaphors sound nice; they suggest the natural, the gradual, the harmonious. But in fact, as even thoughtful liberals have often pointed out, many of the U.S. Supreme Court’s most important rulings over the last half-century have been anything but organic. They have imposed sudden and disruptive changes on the country, usurping the reserved powers of the states and the people, nullifying self-government, and uprooting long-standing traditions.

Liberals of the less thoughtful persuasion try to argue that their pet positions, as imposed by the judiciary, are somehow implicit in the Constitution, lurking in “penumbras formed by emanations” and so forth. If so, why did it take nearly two centuries for the courts to realize that racial segregation, school prayer, obscenity laws, and abortion laws, to take a few examples, were forbidden by the Constitution? Or did these things merely become “unconstitutional” by judicial fiat? The answer is obvious.

The Constitution didn’t “grow”; it was never supposed to. Written law must be stable, or it isn’t law. A government that can change the very meaning of old words is tyrannical.

What really happened — fairly recently, in historical terms — is that the courts were taken over by liberal zealots who saw the judiciary as a potential instrument of raw power. After all, justices are appointed for life; they don’t face the people at the polls and can’t be held responsible for the consequences of their rulings. So by disguising their desires as constitutional mandates, the courts have been able to impose their will on the whole country, uninhibited by reason, tradition, or any other force.

Bush, to his credit, instinctively opposes arbitrary judicial power. Gore, a liberal zealot himself, favors it; he wants the federal courts to keep imposing the liberal agenda, wherever it may lead. This is a truly important difference between two candidates who otherwise agree on far too many things.

This is a subject worthy of a whole evening’s debate by itself. But neither Bush nor Gore seems capable of giving it the full discussion it deserves; both talk in slogans that aren’t backed up by philosophical reasoning.

But at least Bush recognizes that the Constitution doesn’t “grow” by itself; that there are real human agents — “activist liberal judges” — forcing false meanings on it. To hear Gore talk, you would think the Constitution was a form of climbing ivy.

Joseph Sobran

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