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The Living Constitution vs. Original Public Meaning

Born in the 1930s, the "living Constitution" model has allowed justices to bypass the people and the legislative process.

by
Clayton E. Cramer

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September 12, 2009 - 12:45 am
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I’m always amazed by how many Americans completed their educations while believing that the job of the U.S. Supreme Court is to interpret the Constitution and that this means “to figure out what the Founders intended.” Those who were paying a bit more attention, or who took political science classes in college, often know that there are different ways to interpret the Constitution.

There are a lot of different interpretive models, but I’m going to focus on two: “the living Constitution” and “original public meaning.” “The living Constitution” became popular in the mid-1930s in response to the U.S. Supreme Court’s stubborn refusal to approve some of the regulatory measures that the Roosevelt administration thought necessary to revive the U.S. economy. The concept goes back to a decision written by Justice Oliver Wendell Holmes, Jr. in Missouri v. Holland (1920), in which the power of Congress to make international treaties collided with the Tenth Amendment’s reservation of powers to the states.

Justice Holmes explained that when it came to “the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.” (“Master, it’s alive!”) Holmes decided that the decision had to be made “in the light of our whole experience and not merely in that of what said a hundred years ago.”

Holmes was honest enough to realize that Art. VI, which makes “all Treaties … the supreme Law of the Land,” had been superseded by the later Tenth Amendment. Did a treaty for the protection of migratory birds take precedence over an amendment that Congress passed and the states had ratified? Either the Constitution was a contract between the generations — in which case the Constitution needed amending to take away authority of the states over migratory wildlife — or judges could just ignore these silly little amendments that just got in the way of something really important.

Why is the Constitution a “contract between the generations”? Art. VI declares that the Constitution is “the supreme Law of the Land; and the Judges in every State shall be bound thereby.” Art. I includes a list of powers granted to Congress (and not a very long list, at that), a list of powers denied to Congress, and a list of powers denied to the states. Art. V provides a mechanism for amending the Constitution. Its presence is a reminder that when the people ratified the Constitution, it was understood that the government it created was limited.

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