I’d like to add a few thoughts to the article by Dick Meyer in the Register of June 10, "The Constitution Has An HR Problem" (meaning Human Resource). He says “There is no doubt that our system of constitutional government is in a period of distress, but there is considerable doubt about the causes.”
I believe the Constitution has an NC (Non-Constitution) problem. Here is what I see as a major cause of our problems.
What we have today is two very different constitutions. One is the original Constitution of the United States, which many people believe to be out of touch with the times. The other is the so-called living constitution, which changes at the whim of judges, legislators or presidents, completely bypassing the amendment process given in the original.
Before the ink on the original Constitution was dry, there were forces at work by people who wanted to see the federal government have more power over the people. Up until the Civil War, these forces were fairly well kept in check. But the war proved that the federal government could by force of arms wield a lot of power. This invigorated the more-power-to-the-government movement. I can’t give the whole history here, but by the early 1940s, things really began to change and the living constitution took root.
Let me give an example of the living constitution with two statements of Associate Supreme Court Jurist, William O. Douglas in his autobiography, "The Court Years (1939-1975)." From the context in the book, the year was close to 1939.
Associate Justice Felix Frankfurter's statement to Douglas: “If we can keep Bushy on our side, there is no amount of rewriting of the Constitution we cannot do,” pp. 7-8.
And also on page 8, a statement by Douglas himself.
“(Associate Justice) Hughes made a statement to me which at the time was shattering but which over the years turned out to be true: ‘Justice Douglas, you must remember one thing. At the constitutional level where we work, ninety percent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections (biases).’
“I had thought of the law in terms of Moses – principles chiseled in granite. . . . I had never been willing to admit to myself that the 'gut' reaction of a judge at the level of (the) Constitution . . . was the main ingredient of his decision. . .”
Please take the time to get the book and read Douglas’ entire statement. Out of these kinds of changes in jurisprudence is born the living constitution – one that says whatever the judges want it to say. This then, is really no constitution at all - an NC, or Non-Constitution.
By similar means, both the executive branch and the legislative branch have fed the living constitution. And thus is born the war over which branch of the government will end up with total power.
The original Constitution gave us the one and only way to change the document – the amendment process. Any other method is a usurpation of power. It was based on principles, not predilections. Principles are age-old time-tested customs that are found in the Common Law (see Declaration of Independence, the Laws of Nature and of Nature’s God, and amendments four and five) and in nature itself.
While our human interpretations of true principles are not perfect, my experience of living under the Common Law proves to me that principles are far more stable than predilections.
So what we have today is a constantly changing counterfeit document. What was legal yesterday will not be tomorrow, etc. As a result, we are getting law based on predilections instead of principle -- laws changing like the soup du jour. With instability in law, there can be no stability in the economy, nor stability in the culture of our society.
Mr. Meyer is obviously talking about a living constitution, for he suggests we have a democracy and the problems he cites point to a democracy. The original Constitution gave us in the words of Benjamin Franklin, “a republic if you can keep it.” (Republic vs democracy – hugely different).
Yes, we really do have an HR problem - we the People. We the People ordained the original Constitution (see preamble to the Constitution). We have failed to safeguard its principles. Principles like: Freedom and Liberty; the Laws of Nature, and of Nature’s God; a Creator and a Higher Law; unalienable rights; equality under the law; we the people are sovereign over the government; and government that has limited powers, and balance of powers; etc.
Principle or predilection, that is the choice. I’m sticking with the first.