Sunday, July 13, 2003

Night of the Living Dead

In a noble effort to defend "originalism" from the progressive doctrine of the "Living Constitution", Jonah Goldberg argues that the Constitution is dead and that "the only good constitution is a dead constitution."

However, it was the progressives, carrying on a kind of living Jeffersonianism and wanting to "breathe life" into the Constitution, who viewed it as dead. This is, after all, why they argued that new life had to be breathed into it. So the anti-originalist idea of a "Living Constitution" which Robert Bork rightly argued was the "transportation into the Constitution of the principles of a liberal culture that cannot achieve those results democratically," really comes from the idea that the Constitution is dead.

The framers, however, didn't think that new life needed to be breathed into the document which they intended to remain relevant. Interpretation must seek to achieve the intent of the founders which lives on, if only we will be sensitive to it.

Nor did the founders fail to understand that the Constitution is not a system of comprehensive law. The lack of comprehensiveness is often assumed to require a court to step in to fill in the gaps. But this, of course, denies the Constitution's establishment of other branches of government for this purpose. The court's duty is to judge what those other branches do against the Constitution, not against the standards of liberal culture.

It is time that originalists, conservatives who favor the plain idea that judges should actually try to understand the document as the framers wrote it, realize that they think the document, in its original meaning, is alive and relevant. This is the best argument that judges should seek out its original meaning. Conversely, it is progressives, seeking to "breathe" new life into the Constitution, who deny its perennial relevance; they are of the opinion that the Constitution is dead.

Republican government requires more reverence for the rule of law in the citizenry than other, less burdensome forms of government; it requires that the citizens think that the fundamental law is always relevant. In this, our constitutional night of the living dead, the ghoulish threats to republican government are the progressives like Oliver Wendell Holmes who want to breathe life into the supposedly dead document, not the originalists who operate under the premise that the framers' ideas are alive and relevant.


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