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The Silent Revolution

November 21, 2000

The most successful revolutions aren’t those that are celebrated with parades and banners, drums and trumpets, cannons and fireworks. The really successful revolutions are those that occur quietly, unnoticed, uncommemorated.

We don’t celebrate the day the United States Constitution was destroyed; it didn’t happen on a specific date, and most Americans still don’t realize it happened at all. We don’t say the Constitution has ceased to exist; we merely say that it’s a “living document.” But it amounts to the same thing.

If it weren’t for the idea of the Living Document — if the federal government were still circumscribed by the Constitution — it wouldn’t matter much whether Al Gore became president. It’s only the fluidity of limitless power that makes personalities fateful.

The idea of the Living Document was never really debated. It has prevailed because it was gradually insinuated without debate. Lawyers loved it, and that was sufficient.

To formulate that idea is to expose its incoherence. So let’s formulate it.

[Breaker quote: The 
triumph of judicial caprice]It means that the Constitution has no stable and permanent meaning. It means that the Constitution “evolves,” spontaneously changing — and improving — with time. It means that this evolution, this improvement, occurs in (of all possible places) the chambers of the U.S. Supreme Court. It means that the Court is a sort of oracle, suddenly revealing what the Constitution “means,” no matter how alien those new “meanings” may be to what the Constitution has always been understood to mean.

Thus the caprices of nine justices, themselves captives of current fashions, become “constitutional law.”

The most spectacular illustration of the Living Document was the Court’s 1973 ruling that abortion is protected by the Constitution. The Constitution says nothing about abortion, of course; nobody — no justice of the Court, no state legislative minority, no newspaper editorial — had ever objected to the passage of laws against abortion on constitutional grounds.

Yet the Court ruled, in effect, that all 50 states had always violated the Constitution in legislating on abortion. Not only the most restrictive state laws, but even the most permissive were unconstitutional. So said the Court.

Had we missed something? Does the Constitution say anything we failed to notice is relevant to abortion?

Of course not. But in 1973 abortion had become a hot cause, so the Court’s majority decided to give it the force of constitutional law. After all, what could the states do about it? If the Constitution is a Living Document, and only the U.S. Supreme Court can divine the direction of its “evolution,” then the caprices of the Court’s current majority at any given moment are authoritative, virtually infallible. It can reverse the tradition of centuries at will. No matter how arbitrary its rulings, the rest of us can only obey.

It’s a weird parody of the rule of law. Law is supposed to be clear, stable, impersonal, predictable — at the opposite pole from human will and whim. But the Court’s whim becomes virtual law. Lower courts follow it, and the states fall into line.

The Court not only can give pet passages of the Constitution a previously unsuspected breadth, finding a “right of privacy” in “penumbras, formed by emanations” here and there; it can also ignore passages it has no use for (the Second and Tenth Amendments, for example). It exercises a sort of line-item veto over the Constitution. Thus some parts of the Living Document become, quite arbitrarily, dead letters.

If the Constitution means whatever the Supreme Court says it means, then yes, we still live under the Constitution, because we certainly live under the authority of the Supreme Court. But if the Constitution means what it says, and if it has a finite range of objective meanings, we abandoned it — or allowed it to be hijacked — long ago.

Can the real Constitution be restored? Probably not. Too many Americans depend on government money under programs the Constitution doesn’t authorize, and money talks with an eloquence Shakespeare could only envy. Ignorant people don’t understand The Federalist Papers, but they understand government checks with their names on them.

But honest people want to know where they stand, without illusion. And though they are few and far between, it is to them that this column is respectfully and lovingly addressed.

Joseph Sobran

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