During a Constitutional discussion with a friend last week over the merits of our Constitution, she pulled the, “I believe the Constitution is a living, breathing document” card. I laughed to myself. She later told me that she wasn’t around 200 years ago, and that only white men signed the Constitution and thus . . . .
I assume the makeup of Congress was part of the basis for labeling our Constitution as “living and breathing.” I implored her to ratify any part of the Constitution she didn’t agree with with 2/3rds of the Congress and 3/4s of the states. I believe she is now attempting to do so.
In any case, I got to thinking. The Bill of Rights are laws. They are the bedrock laws of our country. These laws were the first laws passed. These laws were passed by Congressional supermajorities on a bipartisan basis. People often refer to Supreme Court cases that have been around for decades and been reaffirmed as super-precedent. The Bill of rights has been reaffirmed through the ages, making those laws super-legislation.
Yet, many people want these super-laws to be, “living and breathing” which essentially means that they desire that the laws be redefined by unelected governing officials to meet today’s challenges.
So I started thinking, is regular, non-super legislation living and breathing?
I wonder if a law like the Voting Rights Act or the Federal Reserve Act or the National Environmental Policy Act (EPA) is living and breathing. Keep in mind that the Federal Reserve Act was passed under the Wilson Administration when there were few minorities in Congress. The EPA Act was passed under the crooked regime of Richard Millhouse Nixon and was passed before I was born and also when there were few women or minorities in Congress. What about the VRA? Wasn’t that passed when my parents were children? Does the makeup of the Congress have any impact on the implementation or legitimacy of our laws today? Many Americans seem to think so. (See: Second Amendment)
If super legislation, aka, the Bill of Rights, was subject to living and breathing through the opinions of others, why can’t regular legislation live and breathe? Does the Sixteenth Amendment which allows for a national income tax live and breathe? We could only hope that if it lives, it can also die. But seriously, which laws breathe and which ones don’t?
For that matter, what about our current laws? Does Obamacare live and breathe?
We know it suffocates business.
But could opposition to Obamacare be redefined by courts as something emanating from the “penumbras” of individual liberty?
Either Congressionally-passed laws are governing on their face without reinterpretation, living or breathing, or all legislation is subject to redefinition. Choosing to redefine laws creates madness. This is why the entire living/breathing debate is so juvenile and self-serving.