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
HONESTLY QUESTIONING THE NOTION OF A LIVING DOCUMENT4
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
HONESTLY QUESTIONING THE NOTION OF A LIVING DOCUMENT5
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
HONESTLY QUESTIONING THE NOTION OF A LIVING DOCUMENT6
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.
HONESTLY QUESTIONING THE NOTION OF A LIVING DOCUMENT7
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
HONESTLY QUESTIONING THE NOTION OF A LIVING DOCUMENT8
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
HONESTLY QUESTIONING THE NOTION OF A LIVING DOCUMENT9
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
HONESTLY QUESTIONING THE NOTION OF A LIVING DOCUMENT10
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
HONESTLY QUESTIONING THE NOTION OF A LIVING DOCUMENT11
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
HONESTLY QUESTIONING THE NOTION OF A LIVING DOCUMENT12
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
HONESTLY QUESTIONING THE NOTION OF A LIVING DOCUMENT13
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
HONESTLY QUESTIONING THE NOTION OF A LIVING DOCUMENT14
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
HONESTLY QUESTIONING THE NOTION OF A LIVING DOCUMENT15
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
HONESTLY QUESTIONING THE NOTION OF A LIVING DOCUMENT16
“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
HONESTLY QUESTIONING THE NOTION OF A LIVING DOCUMENT17
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
HONESTLY QUESTIONING THE NOTION OF A LIVING DOCUMENT18
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
HONESTLY QUESTIONING THE NOTION OF A LIVING DOCUMENT19
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?
HONESTLY QUESTIONING THE NOTION OF A LIVING DOCUMENT20
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