The Constitution isn’t perfect, of course, nor were the remarkable men who drafted it – no person or anything created by mankind can ever be. But as noted by former Attorney General Edwin Meese, III, it is “the greatest political wonder of the world – a government of laws, and not of men.” The Constitution Does “Live and Breathe” – Through the Amendment Process

The Constitution of the United States of America is the single greatest political document ever created by mankind.

This is demonstrated in part by the fact that ours is the longest-lasting written constitution in the world, despite America’s comparatively young age. It is also demonstrated by the fact that America has become the strongest, most prosperous and most benevolent nation in human history on the basis of the Constitution’s firm foundation.

But this is of little import to liberals who advance the vacuous concept of a “living, breathing Constitution.” Prepare to hear this phrase ad nauseam following Barack Obama’s nomination of Judge Sonia Sotomayor, who suggests that gender, ethnicity, physiological traits or “empathy” can supersede Constitutional and statutory text in deciding cases.

The Constitution isn’t perfect, of course, nor were the remarkable men who drafted it – no person or anything created by mankind can ever be. But as noted by former Attorney General Edwin Meese, III, it is “the greatest political wonder of the world – a government of laws, and not of men.”

The Constitution achieved this high status by dividing power not only between federal and state governments, but also between different branches within the federal government itself. By disseminating power in this manner, it helped ensure preservation of our sacred liberties while balancing the rights of democratic majorities with rights of minorities. After all, the Founding Fathers realized that concentration of power in any one branch would risk tyranny by the majority or tyranny by the minority.

In achieving this careful balance, the Constitution by its very nature ensured that no particular faction or ideology can always prevail. Were it otherwise, we would become a nation of men, not laws.

As part of this balance, our Constitution created a judicial branch that would remain independent by way of lifetime tenure. In exchange for the security of lifetime tenure, however, judges were empowered only to interpret laws, not create them as if a super-legislature. Otherwise, there would be no need for Congress if judges could make laws. Accordingly, Alexander Hamilton asserted that the judicial branch would be the “least dangerous” because it possessed “neither force nor will, but merely judgment.”

The Constitution can only function, however, if succeeding generations and judges respect its text and separation of powers. As Thomas Jefferson wisely noted, “our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction.”

Unfortunately, liberal activists frustrated by their inability to get their way have attempted to do precisely that.

The most familiar scheme by which liberals attempt to circumvent the Constitution, and thereby substitute rule of men for rule of law, is with their “living, breathing Constitution” artifice. Unable to achieve their policy goals through the appropriate legislative or democratic avenues, they instead attempt to have their agenda elevated to the status of Constitutional “right.” As Supreme Court Justice Antonin Scalia has wryly observed, whereas dissatisfied citizens once proclaimed, “there ought to be a law,” liberal grievance industries now proclaim, “it’s unconstitutional!”

The problem for such liberals, of course, is that the text of the Constitution often obstructs their desired political ends. For instance, the First Amendment unequivocally states that “Congress shall make no law … abridging the freedom of speech.” Despite this clear prohibition, Congress has enacted campaign finance legislation like McCain-Feingold that directly abridges core political speech. As another example, liberals have successfully enacted dangerous and counterproductive gun “control” laws despite the Second Amendment’s express command that “the right of the people to keep and bear Arms, shall not be infringed.”

Faced with these explicit and inconvenient Constitutional provisions, liberals retreat to the soothing mantra of a “living, breathing Constitution.” They assert that the text and straightforward provisions of the Constitution are somehow less important than some fluid, continuously evolving accommodation for the supposed “realities” of current society. “Why should we be limited by men long dead?,” they ask.

This straw man argument allows liberals to caricature opponents of their agenda as supporting a “dead, fossilized” Constitution.

These activists ignore, however, the fact that the framers of the Constitution did create a mechanism by which it can “live and breathe” – the amendment process. As noted above, the Constitution is a remarkable achievement in the course of human history, but it wasn’t perfect. And the Founding Fathers recognized that.

Accordingly, they allowed for changing societal circumstances and novel developments by specifying how the Constitution could be modified. In fact, it has occurred some twenty-seven times.

This is of little consolation to liberals, of course, since amending the Constitution requires that they successfully advance their arguments in the democratic marketplace of ideas. They would much rather hide behind meaningless but pleasant-sounding bromides such as “empathy” and a “living, breathing” Constitution.

As Americans, we must recognize the danger of this platitude in coming months as we undertake the teaching moment that is the Sonia Sotomayor nomination. As Ronald Reagan said, quoting Daniel Webster, “hold on to the Constitution of the United States of America, and to the republic for which it stands. What has happened once in 6,000 years may never happen again. Hold on to your Constitution, for if the American Constitution shall fall, there will be anarchy throughout the world.”

May 28, 2009
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