The US Constitution Should Be a Living Document

Thanks to Shab for accepting this battle to the death debate.Untraditionally, I will not be laying out a framework for this debate yet. Instead, I am merely going to present facts this round, which I will use to make my case in the next round. Assume that my framework is natural rights; if Con doesn't contest, this is the framework we will use. Con must argue that the Constitution should be a "dead" document to succeed. Accordingly, these facts I present will be used in the next round to accomplish two objectives: 1) to show that the Constitution should be living, and 2) to show that the Constitution should not be dead. Because it can only be one or the other, judges should treat both types of arguments as positive arguments that advance my case. How the Founders Intended It?Significant hullabaloo is raised by some in defending the "original" Constitution. However, the Constitution from its inception was actually intended to be a living document, according to a significant number of its creators and ratifiers. The Constitution was not a coherent statement of ideology, outside of certain vague commitments to liberty. It was the product of compromise (1). Specifically, the compromise was between Federalists and Anti-Federalists. The Anti-Federalists would find camaraderie among the originalists today. The Federalists included John Marshall, a delegate to the Virginia convention to ratify the Constitution, and the fourth Supreme Court justice, responsible for the creation of judicial review (2). It is important to note that judicial review stems from no explicit constitutional authority authority whatsoever--it is truly one of the first and most famous examples of the living constitution, far before the phrase was coined. We can indeed see this same evidence of two interpretations of the constitution in the debate over the Repeal Act in 1803--"[T]he Federalists urged that the constitutionality of the Repeal Act be referred to the Supreme Court. The Republicans responded that the people, not the courts, were the judges of the constitutionality of acts of Congress" (2, pg. 313). Furthermore, "Only 11 of the 55 delegates to the Constitutional Convention, according to Madison's notes, expressed an opinion on the desirability of judicial review. Of those that did so, nine generally supported the idea and two opposed" (3) We'll return to Justice Marshall later, but for now it is enough to say that originalism was not the doctrine of the Founders. I will explain the importance of this in Round 2. Judicial Review--In Defense of Liberty The GPO has published a handy-dandy list of things deemed unconstitutional by the Supreme Court (4). Of particular note are cases 150, 144, 140, and 133. I will not use them now, but I have acknowledged that as a courtesy to my opponent. The fundamental fact about rights is that, by definition, they cannot be subjected to a vote. Either they exist, or they do not exist, and woe be to the positivist that ascribes only the "rights" they like to the people they like--if rights are mutable, they are not rights. A dead constitution necessarily entails that we rewind our conceptions of rights, and of morality, to an earlier, worse time. More than just judicial review, the living constitution approach ensures that the Constitution is a document worthy of respect. The law is not an end, it is a means to the end of the public good. There is no quality of law that gives it an intrinsic utility or moral worth. Even the law of a religious society with religious law is worthless if the law is not followed. To the extent that the law protects the public welfare, it is worthy of praise; to the extent that it damages the public welfare, it is worthy of scorn. One of the great successes of the Living Constitution recently has been Obergefell v. Hodges. In that case, the Supreme Court struck down bans on gay marriage because of the Due Process and Equal Process clauses (5). Both clauses clearly were not meant to apply to gay marriage, and it is doubtful the Founders would have supported gay marriage. Yet, because of the actions of the Supreme Court, gay marriage is legal, and it is guaranteed to remain legal. No legislature can change that. The Living Constitution approach has successfully ensured that the Constitution remains a document worthy of respect that preserves the rights of the people. Rome Quite the segue, eh? This section demonstrates the harm caused when constitutions--in this case, the unwritten Roman Constitution--are insufficient to provide for the people. The beginning of the end of the Roman Republic is generally traced to the tribunate of Tiberius Gracchus (6, pg. 144). Rome was in dire straits. The poor filled the streets of Rome, and wealth continued to be concentrated in the hands of a few (pg. 145). Tiberius pushed for land reform. Tribunes, as it happened, all had the power to unilaterally veto any proposal, and one by the name of Marcus Octavius did just that (146-147). The common people wanted reform (147). The law was intransigent. The natural response? Tiberius convinced the assembly to eject Octavius from office, a step with no legal precedent (147). For his trouble, Tiberius was murdered by the pontifex maximus and a mob of senators and retainers (147). This set the stage for enduring conflict between two camps--the populares and the optimates--with the former relying on popular support to pass reforms and the latter relying on senatorial support to promote stability (153). The clear issue is that there was a dichotomy between the two, when there shouldn't have been a dichotomy. Choosing between terrible law and lawless reform is not a choice. The populares largely gave up on the law altogether, and the optimates failed miserably in their attempts to restore the Republic. A dead constitution goes the way of the optimates--into extinction and irrelevance. It can preserve no freedom in the long run, because it preserves only itself. A living constitution, on the other hand, would have bypassed many of the problems traditionalist Rome had with the populares. It would have enabled Tiberius and others to enact the will of the majority while preserving the rest of the Roman institutions. Attempting reforms under a dead constitution is like attempting a surgery with a battleaxe. You'll get the problem area cut out just fine--and a few other vital organs while you're at it. The scalpel of the living constitution is necessary to preserve this stability.ConclusionIn this round, I demonstrated several strengths of a living constitution, and provided necessary historical context for understanding my case. A living constitution more effectively protects liberties, more effectively allows for reform, and was favored by a good number of the Founders.Sources http://law2.umkc.edu... John Marshall by Jean Smith http://law2.umkc.edu... https://www.gpo.gov... https://www.oyez.org... The Romans: From Village to Empire by Boatwright et al.