by Mitch Kokai
Senior Political Analyst, John Locke Foundation
George Leef explores for Forbes readers the history of the constitutional argument in favor of a “living Constitution.”
The “living Constitution” theory amounts to saying that Supreme Court justices should be allowed to rewrite the foundation of our government as they see fit, sometimes adding ideas that weren’t included, sometimes ignoring ideas that were.
Mostly, “living Constitution” decisions entail the latter, turning a blind eye to the document’s clear limits on governmental power.
From their experience with the British crown, the Founders had a deep fear of government and sought to keep its authority strictly limited. But their philosophy on the proper scope of government conflicts with the views of Americans who believe that ever-expanding state power is the key to a good society. For them, the real Constitution is an obstacle to their goals — hence the need for a pretty euphemism – “living Constitution” to cover up their undermining of the rule of law.
Where did this ruinous idea come from? When and how did it arise? My supposition had always been that it was a creation of the “progressives” in our legal system early in the last century, exemplified by Justice Oliver Wendell Holmes, and liberal intellectuals who favored FDR’s vast expansion of federal authority.
That view is not exactly right, argues John Compton, Assistant Professor of Political Science at Chapman University, in his new book The Evangelical Origins of the Living Constitution. Compton contends that the “living Constitution” idea arose much earlier in our history, an outgrowth the moral reform movement that swept across the United States from the 1820s until the early decades of the 20th century. …
… Compton’s history is compelling. The tension between moral reformers who insisted on a virtually unlimited view of the “police powers” of government (i.e., to regulate in ways intended to protect the health and morals of the citizenry) and the Constitution’s framers, who feared the results of allowing factions to use government power for their ends, was crucial in shaping constitutional law during the 19th and early 20th centuries.
The book shows that by the time the New Deal’s aggressive expansions of federal power came before the Supreme Court, its earlier decisions in favor of approving legislation against liquor and lotteries had so undermined the defenses of property rights, contract, and federalism that it was nearly inevitable that the Court would cave in. Progressives argued that if the Court could interpret Constitution to allow federal legislation when it came to the alleged harms of alcohol and gambling, it should do the same with regard to child labor laws, unionization, wage and price controls, and similar issues. Eventually, they prevailed.