The Silent Revolution
November 21, 2000
most successful revolutions arent those that are celebrated
with parades and banners, drums and trumpets, cannons and fireworks. The
really successful revolutions are those that occur quietly, unnoticed,
We dont celebrate the day the
United States Constitution was destroyed; it didnt happen on a
specific date, and most Americans still dont realize it happened at
all. We dont say the Constitution has ceased to exist; we merely
say that its a living document. But it amounts to the
If it werent for the idea of the
Living Document if the federal government were still
circumscribed by the Constitution it wouldnt matter much
whether Al Gore became president. Its only the fluidity of
limitless power that makes personalities fateful.
The idea of the Living Document was
never really debated. It has prevailed because it was gradually insinuated
without debate. Lawyers loved it, and that was sufficient.
To formulate that idea is to expose
its incoherence. So lets formulate it.
that the Constitution has no stable and permanent meaning. It means that
the Constitution evolves, spontaneously changing
and improving with time. It means that this evolution, this
improvement, occurs in (of all possible places) the chambers of the U.S.
Supreme Court. It means that the Court is a sort of oracle, suddenly
revealing what the Constitution means, no matter how alien
those new meanings may be to what the Constitution has
always been understood to mean.
Thus the caprices of nine justices,
themselves captives of current fashions, become constitutional
The most spectacular illustration of
the Living Document was the Courts 1973 ruling that abortion is
protected by the Constitution. The Constitution says nothing about
abortion, of course; nobody no justice of the Court, no state
legislative minority, no newspaper editorial had ever objected to
the passage of laws against abortion on constitutional grounds.
Yet the Court ruled, in effect, that all
50 states had always violated the Constitution in legislating on abortion.
Not only the most restrictive state laws, but even the most permissive
were unconstitutional. So said the Court.
Had we missed something? Does the
Constitution say anything we failed to notice is relevant to abortion?
Of course not. But in 1973 abortion
had become a hot cause, so the Courts majority decided to give it
the force of constitutional law. After all, what could the states do about
it? If the Constitution is a Living Document, and only the U.S. Supreme
Court can divine the direction of its evolution, then the
caprices of the Courts current majority at any given moment are
authoritative, virtually infallible. It can reverse the tradition of centuries
at will. No matter how arbitrary its rulings, the rest of us can only
Its a weird parody of the rule
of law. Law is supposed to be clear, stable, impersonal, predictable
at the opposite pole from human will and whim. But the
Courts whim becomes virtual law. Lower courts follow it, and the
states fall into line.
The Court not only can give pet
passages of the Constitution a previously unsuspected breadth, finding a
right of privacy in penumbras, formed by
emanations here and there; it can also ignore passages it has no
use for (the Second and Tenth Amendments, for example). It exercises a
sort of line-item veto over the Constitution. Thus some parts of the Living
Document become, quite arbitrarily, dead letters.
If the Constitution means whatever
the Supreme Court says it means, then yes, we still live under the
Constitution, because we certainly live under the authority of the Supreme
Court. But if the Constitution means what it says, and if it has a finite
range of objective meanings, we abandoned it or allowed it to be
hijacked long ago.
Can the real Constitution be restored?
Probably not. Too many Americans depend on government money under
programs the Constitution doesnt authorize, and money talks with
an eloquence Shakespeare could only envy. Ignorant people dont
understand The Federalist Papers, but they understand
government checks with their names on them.
But honest people want to know where
they stand, without illusion. And though they are few and far between, it
is to them that this column is respectfully and lovingly addressed.
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