There is a disturbing extension of a trend that threatens to make the US Constitution irrelevant. For a very long time the Liberal spectrum of legal theory has held the Constitution to be a “living” document. “Living” in the sense that it’s meaning changes with changes in culture. In reality they are the result of changes in the opinion of legal elites. What troubles traditionalist is that these changes are not made through the process of amendments that are subject to popular vote, but by edicts issued by judges. In the view of Conservatives, that makes this re-interpretation of the Constitution illegitimate.
We are now seeing a move to accelerate the disassociation of American law from the Constitution. This is being done by placing into question the entire idea that the Constituent should be a constraint on any governmental action at all. Ruth Bader Ginsburg, a sitting Supreme Court Justice, appears to believe that the document she has sworn to uphold is not the one she would pick if she were in charge of writing one today. Others point to its age, not as a mark of its viability but an indication of senility.
President Obama has warned the Supreme Court not to let the Constitution interfere with his health care law. As long as the Constitution lets him do whatever he wants, it can hang around but it had better not get in the way of the changes he wants to make in America.
We are entering a time when it may be incumbent on each of us – not just judges and lawyers - to decide if we owe any allegiance to the document that validates the acts of our government. If so, we need to defend the Constitution by denouncing those who would do away with it for their convenience, and vote out of office those who have shown a disregard for the limits this document has placed on their powers.
At the Constitutional Convention Benjamin Franklin famously said that we have a Republic, if we can keep it. If the Constitution is a scrap of paper that’s encased in a box in the National Archives it can be disregarded. If it lives in the hearts and minds of American citizens, who will defend it with their lives, it will live as long as they are faithful.