Monday, March 12, 2007

What is the Purpose of the U.S. Constitution, and is it a "Living Document"?

The Constitution serves two basic purposes: first, to limit the Federal Government; second, to enumerate our basic Rights as individuals. Limitation is accomplished by delegating certain powers to the various branches of our Government. This next concept often is not grasped by many people: if a certain power is not delegated to any branch of our Government, then no branch (or anyone in the Government) has that power. Example: the Government has been delegated the power to use the military for only two purposes---to repel invasions and/or to quell insurrections (in this country) . [NOTE:  there is a third purpose, but it's very similar to "quell insurrections".]  Nowhere in the Constitution is the Government delegated to use the military as a world police force. Those who believe that it should be used in such a manner need to lobby for a Constitutional Amendment. That amending process (or the holding of a Constitutional Convention) is the way our Constitution is legally changed. No other way is permitted.

Supporters of the dangerous theory that our Constitution is a "Living Document" believe that we need to re-interpret the Constitution from time to time...adapt it to our modern way of life... without using the Amendment process. Justice Antonin Scalia says that is dead wrong. I most certainly agree. To quote him, "The Constitution does not change in its meaning..."; unfortunately, his view appears to be in the minority in the halls of our Government today.

Over many years, one of the results of re-interpreting the Constitution has been the exponential expansion of the power of all three branches of our central Government. That has been accomplished, in large part, without any corresponding Amendments delegating new powers. An example is the area of education. Nowhere in the Constitution is power delegated to the central Government regarding education. A more recent example is the area of citizen identification via the REAL ID Act, which takes effect in May of 2008. Again, nowhere in the Constitution is the central Government delegated the power to have anything to do with ID. That's why we've never had a national driver's license, and why the Government stresses that your SS card is not to be used for ID. In both those examples, an Amendment is required for the Federal Government to have any power whatsoever. Those Amendments, to my knowledge, do not exist.

According to Justice Scalia, the "Living Document" concept took hold about fifty years ago. Other results of this concept have been numerous challenges to the Bill of Rights, especially the First, Second, and Fourth Amendments. The concept is dangerous because, as Scalia says, "...with such an approach, the Constitution can say anything you want it to. But this nation was not built on the principle that Judges, attempting to gauge the will of society, would interpret the Constitution differently as time goes by...". More from Scalia: "A Bill of Rights that means what the majority wants it to mean is worthless."...quotes from the Milwaukee Journal Sentinel, March 14, 2001.

The Rights of individuals never change (the Constitution does NOT grant us Rights, they are our birthright**) and the limitations on the Federal Government do not change without a Constitutional Amendment or Constitutional Convention. That's the way it should be, but that's not the way it is today.

**Someone needs to tell this to Attorney General Gonzales, who recently suggested that the Constitution does not GRANT us the Right of habeas corpus (the right to know in court of what we are being accused); therefore, according to him, the Government does not necessarily have to observe it.