Our Living, Breathing Constitution
By Edward Daley (03/25/05)
Many judges these days like to refer to the Constitution of the United States as a "living, breathing document", implying that its text is designed to be flexible. It is not. The Constitution is a set of rules, and like any other set of rules, it is meant to be strict and uncompromising. Of course, the Constitution can be modified through the amendment process, but once ratified, any amendment becomes like the rest of the Constitution; rigid.
And while any amendment may be repealed, as was the case with the 18th Amendment (The Prohibition Act), until that happens, it is just as concrete as any other part of the Constitution, and not subject to interpretation beyond the literal meaning of its text. The Constitution does not live, breath, or do the cha-cha, for that matter. It is in many ways an instructional manual for the way our country was designed to run, and amending it is very serious business.
When a judge refers to it as "living and breathing", what he or she means is that the words within it can be taken in different ways, depending upon who is looking at it at any given time. They also apply words like "evolving" to it, as if it is some sort of life form that routinely adapts to its environment. That, of course, is ridiculous. Our Constitution only "evolves" when an overwhelming majority of the American citizenry determines that a change is necessary, not because of some judge's personal belief in how that document should read.
Words mean what they mean, not what we wish they would mean, whenever we become uncomfortable reading them. One cannot rightfully look at the Constitution and determine that its text means something other than what it has always meant, and was intended to mean upon its ratification. One may only disagree with the principles underlying those words, and seek to further amend the document, thereby introducing new words and rationales into it.
When a judge, at any level of jurisprudence, seeks to RE-interpret the Constitution, tincturing that interpretation with their own personal moral predilections, or their supposed understanding of "society's evolving standards", what they are doing is something which is prohibited by the very Constitution they are regarding.
They are, in effect, amending it themselves, without deference to the one branch of government that is solely charged with that right and responsibility; Congress. They are disregarding the most fundamental aspect of what we refer to as our country's "separation of powers", and are disrespecting the will of the people to whom Congress is accountable... and to whom the judiciary is not.
Once accountability has been sidestepped at any level or within any branch of government, the result is, by the very definition of the word, tyranny. Regardless of one's political persuasion, one must always bear in mind that a judge should never exhibit his/her own bias, either to the left or the right, in open court. A judge's job is to be non-partisan, unbiased, and indifferent to outcome.
Judges are supposed to be blind to ideology, and considerate only of the hard and fast principles of the written law. If you are willing to tolerate a judge's unconstitutional actions, merely because you happen to agree with the outcome of his/her opinion at any given time, then you may want to familiarize yourself with the term "all hail the emperor", because you'll be using it sooner than you think.
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