Is the Constitution a ‘living document’?
resident Clinton, you have appointed one liberal/progressive justice to the Supreme Court. Now you have an opportunity to appoint a second justice. We conservatives would like for you to appoint an Originalist who interprets the Constitution in light of what the framers intended.”
Had she been elected and were that question posed to her, what do you think her response would be? Any doubt? Perhaps, “I won and to the victor goes the spoils. I will appoint a justice who appeals to those who elected me.”
A lot of people would be pleased with such rigidity. Many would be crushed, defeated. Some would be angry. Those responses represent the reaction of many to President Trump’s recommendation of Brett Kavanaugh. Winners revel, losers lament. Originalists such as Kavanaugh rely principally on the “Federalist Papers” and notes from the original Constitutional Convention as commentaries on the intent of the framers.
A justice who would please the current dissenters would be a person who believes the Constitution is a living document and should be interpreted in light of current concepts, not the original intent. In part, they insist the Constitution says what government can’t do, such as engage in unlawful search and seizure. It does not say what the government should do, such as, provide free education, guaranteed employment, free health care, housing, and the list goes on. Currently, those who advocate such concepts are those protesting most loudly.
John Quincy Adams noted, “The law given from Sinai was a civil and municipal as well as a moral and religion code-laws essential to the existence of men in society and most of which have been enacted by every nation which ever professed any code of laws.”
“If ‘Thou shall not covet,’ and ‘Thou shall not steal,’ were not commandments of Heaven, they must be made inviolable precepts in every society before it can be civilized or made free,” wrote John Adams.
“Human law must rest its authority ultimately upon the authority of that law, which is Divine. Far from being rivals or enemies, religion and law are twin sisters, friends and mutual assistants,” said James Wilson, U.S. Supreme Court justice and signer of the Declaration of Independence and the Constitution.
These statements indicate the framers believed the immutable laws which predated the Constitution, and are embedded in it, should perpetually post-date the Constitution, thus the Originalist interpretation.
Up until 1947, law was interpreted on the basis of our Constitution. Numerous rulings prior to that sustained the Commandments. Around that time, some brilliant lawyers “determined” our Constitution is “a living document” and law should be interpreted on the basis of current conditions, not the intent of the framers of the Constitution.
That is contrary to a 1958 Supreme Court ruling in the Cooper vs. Aaron case which stated: “Article VI of the Constitution makes the Constitution the ‘supreme law of the land’ ... It is emphatically the province and duty of the judicial department to say what the law is . ... It follows that the interpretation of the Constitution enumerated by the Court is the supreme law of the land ... ”
It is as though America is on a delicately balanced teeter-totter. One way or another, the court will always tend to be off balance. An Originalist juror tilts it to the right. When reflecting on what is noted above as the desire of those on the left, it is a good thing.
The Rev. Nelson Price is pastor emeritus of Roswell Street Baptist Church in Marietta and a former chairman of the Shorter University board
of trustees.