Honestly questioning the notion of a Living and Breathing Document - The British Constitution

Running Head: HONESTLY QUESTIONING THE NOTION OF A LIVINGDOCUMENT 1

Honestly questioning the notion of a Living and Breathing Document

The Constitutions compared, and background.

Abstract

The notion that America's Constitution is a “living and

breathing document” is a notion that was introduced just over one

hundred years ago, and ever since it's introduction, it has only once

been thoughtfully challenged. Historians are observably unanimous in

their agreement with it, which initially proved to be somewhat

problematic for this paper as there only exist two opposing

interpretations. The prevailing conventional wisdom is so wide

spread that it was difficult to even find a proper enunciation.

People have just always assumed that “this is how it is”, so why

defend it? However, this assumption should not prove to be fatal to

the paper considering how easy it was to trace this notion down to

the source. It is important that others should take note of what is

being proposed here because our Constitution is, as Gladstone stated,

“the most wonderful work ever struck off at a given time by the brain

and purpose of man” (Gladstone, 1878) and anything that undermines

the Constitution should be vigorously and forcefully challenged.

HONESTLY QUESTIONING THE NOTION OF A LIVING DOCUMENT3

The beginning of the 20th century was a period of great upheaval

and strife. Railway strikes, poor working conditions, issues with

taxation and currency, political machine bosses, and American

Imperialism abroad. During this time period the American people were

much more isolationist, following the example set by George

Washington in 1789, so foreign excursions quickly met public

impatience. Thus, the imperialists came home, but they did not drop

their imperialist ways. Having turned away from the Philippines,

Cuba, Guam, and Puerto Rico, the imperialists set their sights inward

toward the American people. But the imperialists had two big

problems. First, there was the issue of labeling, but this was

easily solved as they could aim inward by cloaking their goals under

the name of “progress”. Second, there was the issue of the American

Constitution which is a government limiting document. This problem

was overcome as well by characterizing it as a “living and breathing

document.” On the surface, this notion is easy to agree with, but it

is a gilded notion.

In order to understand the notion of the “living and breathing

constitution,” it is necessary to understand where the notion at hand

comes from. In a campaign speech in 1912, Woodrow Wilson made


several comments which are highly suspect(Foner, 2011, p. 95). In

reference to the Progressive Party platform, he asks for the part

which determines “how the government is going to stand related to the

central problems upon which its freedom depends.” Later in the

speech, he asks for a test of freedom for the next generation in

relation to the trusts: “Are we going to take that power away from

them, or are we going to leave it with them? You can take it away

from them if you regulate competition.” Finally, toward the end of

the speech, or at least the selection of the speech as laid out by

the text book, he asks about liberty and the limitation of

governmental power “that in the year 1912 we have discovered a unique

exception to the movement of human history?” Wilson is, of course,

asking this question outwardly. Evidence suggests that he would

answer his own question affirmatively.

Chief Justice William Rehnquist writes of the notion at

hand(Rehnquist, 2006) that it can be traced to Justice Oliver Holmes

in the Missouri v. Holland case. This is certainly true in a

judicial sense, and it's important to note the key words that Holmes

uses, specifically in reference to his use of the word “organism”.

Just as in the prior paragraph, we look to both Woodrow Wilson and


the year 1912, but this time in a different speech titled “What is

Progress,” Wilson says the following:

The trouble with the theory is that government is not a

machine, but a living thing. It falls, not under the theory

of the universe, but under the theory of organic life. It is

accountable to Darwin, not to Newton. .... Society is a

living organism and must obey the laws of life, not of

mechanics; it must develop. All that progressives ask or

desire is permission... to interpret the Constitution

according to the Darwinian principle; all they ask is

recognition of the fact that a nation is a living thing and

not a machine(Wilson, 1913, p. 47).

In 1912, Wilson first openly acknowledged his idea. However, he

develops the idea earlier (Wilson, 1908, p. 56) in his 1908 book when

he wrote “Living political constitutions must be Darwinian in

structure and in practice." Even the most casual observer can pick

up the book and see that his 1912 speech uses a large excerpt of his

book verbatim. In order to understand Wilson's ideology, we need to

understand a bit of Wilson's mindset. It would be easy to point out

that Wilson promised in his 1910 Gubernatorial Campaign that if


elected he would be an “unconstitutional governor,”(Pestritto, 2005,

p. 170) but there is greater substance in getting down to the gritty

details of how as governor Wilson micromanaged everything. He

fulfilled his promise.

As governor, Wilson inserted himself in several of what were at

the time considered high profile controversies such as the selection

of a senator and high profile public speaking campaigns for certain

legislative measures. With the way Wilson mixed governmental powers

as New Jersey's Governor, he let his love for the British

Parliamentarian system shine through (Thies & Pecquot, 2010). As was

noted in publications at the time, Woodrow Wilson was exemplary in

the role of Prime Minister for the State of New Jersey (Hendrick,

1911, p. 217). As Governor, or rather as Prime Minister, Wilson ran

what he himself called a “Commission Government”(Pestritto, 2005, p.

170), that is, he kept true to the tenets of Progressivism by having

an abundance of scientific commissions and expert panels. Wilson's

love for the British system of government ran very deep. This can be

seen by his profound respect for the writings of Walter Bagehot(Thies

& Pecquot, 2010). His respect for the system that our neighbors

across the pond have was not something he wished to admire from afar.


He sought to bring it closer to home.

In a speech about the Declaration of Independence, Wilson made

the following statement (Pestritto, 2005, p. 56) “If you want to

understand the real Declaration, do not repeat the preface". What

Wilson did repeatedly was undermine and redefine the very notion of

Liberty itself, as Professor Pestritto points out, and as this paper

opens. Wilson did believe that “in the year 1912 we have discovered

a unique exception to the movement of human history”, and he believed

that unique exception to be “Public Administration.” It can be said

with a good deal of authority that when Woodrow Wilson spoke of

“freedom,” in the terms he does as elaborated by this paper, he is

not talking about freedoms for individuals. He is talking about

setting government free, void of any Constitutional constraint. As

Wilson would point out(Wilson, 1887), “Self-government does not

consist in having a hand in everything, any more than housekeeping

consists necessarily in cooking dinner with one’s own hands. The cook

must be trusted with a large discretion as to the management of the

fires and the ovens.”

With this along with what been shown, Wilson does not mean

congressional representation. As his governorship shows, following


into his leadership as President and stewardship of laws (and

likewise, the resulting commissions) such as Clayton, FTC, and

Federal Reserve respectively, he means centralized planning via

unelected commissions and regulation. In “Congressional Government”

Wilson wrote of the Presidency that he "will be as big and as

influential as the man who occupies it", and he was definitely big

indeed, far too big for Constitutional limitation. The cooks in

Wilson's kitchen managing the ovens are experts appointed to any

number of commissions, completely unaccountable to the people. You

see, we would not want to do too much by vote and if government is

unshackled, then one does not need to do too much by vote because now

the “experts” are in charge.

As Rehnquist points out in his writing, the notion at hand

allows for “the substitution of some other set of values for those

which may not be derived from the language and intent of the

framers”, and as we can see from the writings of Woodrow Wilson, his

original intent was seeking redefinition and substitution. Wilson

himself states that he prefers to interpret the Constitution along a

Darwinian line. That is, re-interpret it in a new way. To put this

as simple as possible, if the American Constitution is a “living and


breathing document”, then America has no Constitution. All America

has is merely a piece of paper that is dominated by a spirit that

(Wilson, 1911) “is always the spirit of the age”. In a lot of ways,

Wilson was obsessed with the notion of the current age being the only

age that mattered, at least as it pertained to government, having

written that (Pestritto, 2005) “government does now whatever

experience permits or the times demand”.

There are some which may be surprised to find out that our

Founders in their wisdom actually did see this one coming, and of all

of the Founders, the one who wrote about it is the acknowledged

Father of the Constitution. James Madison wrote the following to

another Founder, Henry Lee:

With a view to this last object, I entirely concur in the

propriety of resorting to the sense in which the Constitution

was accepted and ratified by the nation. In that sense alone

it is the legitimate Constitution. And if that be not the

guide in expounding it, there can be no security for a

consistent and stable, more than for a faithful exercise of

its powers. If the meaning of the text be sought in the

changeable meaning of the words composing it, it is evident


that the shape and attributes of the Government must partake

of the changes to which the words and phrases of all living

languages are constantly subject. What a metamorphosis would

be produced in the code of law if all its ancient phraseology

were to be taken in its modern sense. And that the language

of our Constitution is already undergoing interpretations

unknown to its founders, will, I believe, appear to all

unbiased Enquirers into the history of its origin and

adoption(Madison, 1865, p. 441).

This puts William Rehnquist firmly in agreement with James

Madison, the words have to carry meaning otherwise it is a blank

piece of parchment. It is important to note not just Wilson's words,

his views, and his actions as both Prime Minister of New Jersey, and

later as a two term President, but perhaps most important is his love

for Britain's political construct because that's what he sought to

import. Anybody could attempt to go purchase a copy at the book

store or attempt to print out a copy as found on the internet, but

the fact is that Britain simply does not have a written Constitution,

so all attempts of this nature to procure said Constitutional copy

would result in failure. The American Constitution on the other hand


is easily procured. It also carries with it a very high bar for

amendment, needing two thirds of the Senate, two thirds of the House,

and then three fourths of the individual states. While amending is

not impossible, this is very much akin to a slab of stone and a

chisel, anybody who attempts this work has extremely hard work ahead

of them. This was not something that was intended to be tinkered

with at all times and be subject to any spirits of any other age than

the one in which it was written.

Contrast that with the British Constitution which, according to

the website of Pearson Education (Changing Constitution, 2010) as well as

Parliament's own website (Mapping the path to Codifying, November 2012),

all that is needed is a “simple majority” of fifty percent plus one

to reach amendment. The Pearson website rightly points out that

given the ease of amending the British Constitution, it is highly

flexible. Furthermore, the British Constitution, while not even

codified, is also not limited to one single document. As we can see

from a different web page of Parliament(Constitutional Matters, 2003), the

British Constitution consists of twenty one documents starting from

the year 1297 and ending in 2004. Contrast that to the American

Constitution which comes with one single year, 1789. With this


information entered into evidence, it can be more accurately stated

that this is a document that's highly reflective of the spirits of

many ages(Wilson's phrase) which is natural given its high degree of

flexibility due to ease of amendment. It only requires a simple

majority to achieve an amendment, no chisels required as you are not

dealing with something set in stone.

If the American Constitution is not living and breathing, then

what is it? Well first, just because it is not “living” does not

mean that it is “dead”. If you want to see an example of a dead

constitution, look to Rome. While Rome's “constitution” was

uncodified similarly to what Britain has(“The Constitution of the Roman

Republic”, Posner, 2010), another example of a dead constitution would

be the Kingdom of Prussia. Constitutions are legal documents, they

do not live and breathe in the way that Wilson tried to describe, but

considering how Wilson laid out his concept of a living document, we

can comfortably say that Britain's model fits the mold as if that is

what he was describing all along.

While constitutions do not “live” along these lines, if the

societies that they are tied to die or become eclipsed, such as Rome

and Prussia, then the documents are as dead as the societies that


used to be subject to them. If the American Constitution were ever

to die, then that means that the American People will have repealed

and replaced her and reverted back to a more monarchical form. To

put this simply, the opposite of a living and breathing document is

an amendable document; not living, not dead; amendable. Our

Constitution with it's amendment process and high bars is in and of

itself proof that it's not a living and breathing document, it's an

amendable document.

While we are on the topic of amendments, it should be addressed.

Do the amendments insert a “spirit of the age” into the constitution?

Yes, to a certain degree the amendments do. But here is the problem

with the question. Wilson's argument was not that the amendments are

what makes the constitution a living organism, he believed it to be

inherently living and breathing. The amendments are not factored in

at the source. As the decades have passed by, progressives have

continued thinking that they have some mandate to interpret it

however they wish on the fly, using their hand picked judicial

activists to re-write it with impunity. But it is not just the

judiciary, everybody operates upon the notion that the American

Constitution is a “living and breathing” document. As far as the


judiciary is concerned, the notion has left the courtroom.

The implications of the doctrine of the “living and breathing

Constitution” are profound if not breathtaking. While there are

plenty of other items which have served to put the sovereign people

at risk, this notion has certainly played a role in the overall

scheme. It's effects and impact on Americans one hundred years ago

were just about non-existent, but long term what Americans live with

today is a government that exists nearly 100% outside of the firewall

protections of the Constitution. Its effect is akin to a

steamroller, while it was very slow to get rolling, it is now

crushing everybody. By the time this paper is subject for grading by

the professor, the National Security Administration(Connecting the Dots

on PRISM, Bamford, 2013) will have already read it and given an “A”

grade. The Internal Revenue Service has for years harassed and

abused the citizenry, and currently uses the tax code for the

purposes of political destruction(IRS targeting of Tea Party groups didn't start in

Ohio , Becker, 2013). In the Sackett v Environmental Protection

Agency case(Property Owners Can Challenge EPA, Totenberg, 2012), the

Supreme Court ruled unanimously that the Sacketts were indeed allowed

to challenge the Environmental Protection Agency. That's all, just


the right to issue a challenge, not even a decision on the merits of

the case. This sort of treatment of citizens is common under

centrally planned societies, and it demonstrates that when Wilson

asked “Are we going to take that power away from them(the trusts), or

are we going to leave it with them“ that we have way beyond this.

The progressives have taken the power away from all of us so much so

that we have to sue to even get the right to challenge. The

imperialists said they only wanted to target the trusts, but they

targeted us all.

When elected officials go out and suggest using the 14th

amendment as a means for the Executive branch to assume control over

the public debt(Pelosi would use 14th Amendment for debt ceiling raise, 2012),

even though the text of the 14th amendment specifically says in

section four that it is solely congressional authority, then every

citizen can seriously consider the question “does the text of the

amendment even matter?” Our elected officials have clearly not read

it in a long time. When the judiciary, which is supposed to be the

impartial branch, does not have respect for the document then why

should any other branch of government have any respect for it?

The 14th amendment is so clear on this as it states that it


“shall not be questioned”. Given the fact that current

interpretation of the Constitution is that of a “living” document,

why should anybody even consider that the text matters? That's the

real question. And that's why this is all so relevant. Because we

have a “living” document, we have no Constitution, which is why we

don't have a fourth amendment anymore. All phone calls are owned by

government whether we like it or not. Two hundred and fifty two

years after James Otis, we once again have general warrants. We

don't have a first amendment anymore either, you're not free to

peacefully assemble and air your views without the Internal Revenue

Service coming after you, thus re-enacting the following line from

the Declaration of Independence:

He has erected a multitude of New Offices, and sent hither

swarms of Officers to harrass our people, and eat out their

substance.

In conclusion, this paper primarily sets out to demonstrate that

the notion of a “living and breathing constitution” as it pertains to

the American Constitution, is manufactured out of whole cloth. But

if we really are intent on remaining stuck on the island then we have


to consider that the American Constitution just does not fit this

mold very well, and that the British Constitution is the equivalent

of a round peg being put into a round hole. The abstract for this

paper ends with a quote from William Gladstone from an article titled

“Kin by Sea”, so it is only fitting that the paper itself should also

conclude with him, and with the greatest irony, using the exact same

article and the exact same sentence even.

As the British Constitution is the most subtle organism

which has proceeded from the womb and long gestation of

progressive history, so the American Constitution is, so far

as I can see, the most wonderful work ever struck off at a

given time by the brain and purpose of man(Gladstone, 1878).

A post conclusion wrap-up and cover of the major points. The

notion of a living and breathing document is a Wilsonian construct,

which makes his ideology central to understanding all of this. Here

are the major points: First, Prime Minister Wilson openly

acknowledges his desire to re-interpret the constitution along non-

traditional lines, preferring to view government and the Constitution

as an organism, a vehicle of life. Second, Prime Minister Wilson was


more than happy to throw out critical pieces of founding documents in

order to make a point, as he did when he recommended ignoring the

preface of the Declaration of Independence. Third, Prime Minister

Wilson was obsessed with the notion of the “spirit of the age”, that

is, our current age is all that matters. This is evident not only in

his repeated writings and words such as his reference to the

Declaration and his books which use the phrase, but also his campaign

promise and fulfillment of that promise to be an unconstitutional

governor. Perhaps most of all, it is evident in his original

statement when he says he wants to interpret the Constitution in a

Darwinian fashion. What is Prime Minister Wilson saying here? He's

saying that he wants the interpretation to be constantly evolving.

“Spirit of the age”, exemplified, right there in the original

request. Finally, Prime Minister Wilson's clear Parliamentarianist

world view shines through, particularly when you take into account

his respect for Walter Bagehot.

Which brings us to the counter major points, the British

Constitution. First, there really is not any British Constitution.

Or rather, you would be hard pressed to prove it because you cannot

just go out and print up a copy, or buy a copy. Their Constitution


is an uncodified document which leaves it up to re-interpretation all

day every day. Second, the British Constitution only requires a

fifty percent plus one majority in order to change it. Which means

that if you have the majority, you can make it say whatever you want

it to say. Which sounds eerily like it is a “living and breathing

document”. Thirdly, the British Constitution incorporates twenty one

documents spanning nearly a thousand years, making it very much

subject to several “spirits of the age”.

Now you tell me. Which Constitution is a living and breathing

document?


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Honestly questioning the notion of a Living and Breathing Document - The British Constitution

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