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SCOTUS Rejects the Theory of the 'Dying Constitution,' Strikes Blow for Liberty


The Citizens United decision is a powerful rebuke to the forces that believe our Constitution is less a solid foundation of our democracy then a political pretzel to be bent and twisted into any form the politicians choose. Sadly, far too many journalists and other people who really should know better blindly accept this bizarre vision of our founding documents. They allow themselves to be seduced by the notion that the foundations of our democracy are actually barriers to “progress” that can simply wished away instead of firm principles that, if they are to be changed at all, can be amended only with the overwhelming and express consent of the governed.


The Left often argues that the Constitution is a “living” document, by which they really mean that the plain text is irrelevant and that over time the Constitution’s provisions inevitably morph into – surprise – something that just happens to correspond exactly to their precise policy preferences. And so the “Living Constitution” grows, but less like a mighty oak than a patch of weeds. Take the Commerce Clause, originally drafted to allow the federal government to control trade between the states but today a bloated behemoth that provides an excuse for every Congressional power grab that comes down the pike — including, if Nancy Pelosi is to be believed, “health care reform.”

The Living Constitution even grows shoots without roots. Love them or hate them, you won’t find a reference to either abortion or same-sex marriage in the text, but you’ll find Living Constitution fans swearing those things are in there somewhere, probably lurking behind the emanation of a penumbra. The same is true of the infamous Miranda warning. Maybe it’s good policy, maybe it’s not, but it certainly isn’t set out in the Bill of Rights – imagine James Madison’s reaction to the notion that his work requires a ritualized recitation to every cutpurse, killer and apparently now, enemy combatant, who falls into the hands of the authorities.

And what they don’t mention is that they also believe that, like all living things, the Living Constitution can die too. And again, it comes as no shock to see what parts they contend have died – the very ones that they hate.

Hate guns? Well, then that part of the Second Amendment about “the right of the people to keep and bear Arms” not being infringed is simply obsolete and we can just ignore it. People you don’t like engaging in speech you don’t like? Well, the part where it says, “Congress shall make no law . . . abridging the freedom of speech, or of the press” really comes with an invisible asterisk that – another shocker – allows us to abridge the speech we don’t like of people we don’t like, as well as prevent the “free exercise” of any religion other than atheism. And the death penalty – who are we to take another person’s life? – we can just ignore the numerous express references to it in the text. After all, it must be unconstitutional since we’re against it, right?

Like the Heller decision on the Second Amendment, which restored gun rights of residents of the District of Columbia, Citizens United is a welcome reminder that the Constitution actually means what it says. But it should not have taken five robed justices to explain that “Congress shall make no law…abridging free speech” actually means that “Congress shall make no law…abridging free speech,” and the four other ustices should never have dissented.


Happily, today’s ruling in favor of the rule of law and the plain language of the Constitution will depress and discourage those on Capitol Hill who imagine that they know better than the Founding Fathers.

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