Recently, Justice Scalia gave a speech at the Helms Center explaining why he holds to his philosophy of interpreting the Constitution according to the intent of the framers.

The debate over originalism versus the idea of a “living Constitution” has flared up in the Wall Street Journal. Two writers who favor this fuzzy notion had a letter published on Nov. 5 and today’s paper contains four responses that demolish their position. Here are two:

LETTERS
A ‘Living’ Constitution and Original Intent
In “The Founders Wanted a Living Constitution,” letters page, Nov. 5, Don Gooding and Peter L. Wanger close their letters with these statements, “We have a living Constitution that needs to keep changing with the times,” and “The world constantly changes. The Constitution of the United States must do the same.”

Both writers mention changes that must be accommodated by the Constitution, but neither answers the following questions: Must we accommodate bad changes such as socialism? What about good changes? Who decides which changes to accommodate?

I believe the Founders, with their extensive knowledge of history, deliberately made constitutional changes difficult by requiring amendments to the Constitution be ratified by three-fourths of the states. The difficulty of that process answers all arguments in favor of a flexible Constitution.

Robert Morgan Emerson
Anacortes, Wash.

Both Don Gooding and Peter L. Wanger imagine that the Ninth Amendment somehow supports the notion of a “living Constitution” that gives judges willy-nilly authority to invent new rights and to displace the operation of representative government. They are mistaken.

Beyond the rights listed in the Constitution, the Ninth Amendment does presuppose the existence of other rights that are retained by the people. But these rights are of two sorts.

First, they include the freedoms that are the correlative of the limited powers of the national government. As James Madison explained, placing limits on a granted power operates to secure rights beyond the exercise of that power.

Second, they include the broad array of non-constitutional rights that state law is free to protect, including the basic right of the people to engage in self-governance. Indeed, those who seem to think that any right that is really important must be of constitutional stature engage in the very disparagement of non-constitutional rights that the Ninth Amendment is designed to guard against.

M. Edward Whelan III
President
Ethics and Public Policy Center
Washington

Here’s a question I’d like to ask the “living Constitution” people: Shouldn’t we also insist on “living” statutes? If the meaning of the Constitution needs to “change with the times” and “adapt to current realities” thus allowing judges to interpret it in any way they think is good, why not say the same about all the rest of our laws? Suppose that the Social Security Act (or any other statute that Big Government liberals or conservatives like) were subjected to the kind of “interpretation” that various provisions of the Constitution have been. With the right set of judges, the result could be the evisceration of the whole program, possibly by taking the word “contributions” to mean what it means iin ordinary English, namely that you pay if you want to.