Alexander's Column

A 'living constitution' for a Dying Republic

By Mark Alexander · Sep. 16, 2005

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. … Done…the seventeenth day of September, in the year of our LORD one thousand seven hundred and eighty seven.” –George Washington and the delegates

On 17 September of each year, we observe Constitution Day, in recognition of the anniversary of that venerable document's signing by our nation's Founders. Of course, most of the federal judiciary pay no homage to that date. They are preoccupied rewriting the so-called “Living Constitution,” amending it by judicial diktat rather than its prescribed method in Article V.

For its first 150 years (with the notable exception Marbury v. Madison in 1803), our Constitution stood as our Founders, and more importantly, “the people,” intended – as is – in accordance with its original intent. In other words, it was interpreted exegetically rather than eisegetically, textually as constructed, not what could be erroneously read into it by later generations of legislators and jurists. As such, it enshrined the primacy of Essential Liberty and the Rule of Law over the rule of men.

In the early 20th Century, there was still evidence of reverence for the supreme law of the land. For example, prohibitionists acknowledged that the Constitution did not include a single word about alcohol consumption and would have to be amended before the central government would have the authority to outlaw alcohol. On 16 January 1919, the 18th Amendment was ratified by the states. Within the decade the law of unintended consequences prevailed, and even ardent prohibitionists realized that enforcing the 18th Amendment had spawned a massive and violent organized-crime culture. Thus, on 5 December 1933, the 21st Amendment was ratified, repealing the 18th.

These two amendments were the last pertaining most directly to the authority of the central government, while the remaining five address specific modifications to the plain language of our Constitution. So how is it now that the central government has become the behemoth our Constitution expressly prohibited?

Prior to the reign of Franklin D. Roosevelt, the courts were still largely populated with originalists, who properly rendered legal interpretation based on construction of the Constitution's “original intent.” However, FDR grossly exceeded the Constitutional limits upon the authority of his office and that of the legislature in his folly to end The Great Depression (the latter falling victim to World War II – not FDR's social and economic engineering). FDR's extra-constitutional exploits opened the door for the judiciary to follow the same path – to read into the Constitution what was necessary to make it conform to the demands of the prevailing political will.

In the decades that followed, the notion of a “Living Constitution,” one subject to all manner of judicial interpretation, took hold in the federal courts. Judicial activists, those who legislate from the bench by issuing rulings based on their personal interpretation of the Constitution, or at the behest of likeminded special-interest constituencies, were nominated for the federal bench and confirmed in droves.

This degradation of law was codified by the Warren Court in Trop v. Dulles (1958). In that ruling, the High Court noted that the Constitution should comport with “evolving standards…that mark the progress of a maturing society.” In other words, it had now become a fully pliable document. Indeed, the Constitution has become “a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please,” as Thomas Jefferson warned, and the judiciary, in Jefferson's words, “the Despotic Branch”.

Consequently, we now have a Constitution in exile, it having becoming little more than a straw man as the courts have become increasingly politicized, serving the special interests of political constituencies rather than interpreting the plain language of our Constitution, as judges are, by oath, sworn to do (Article VI, Section 3).

The Federalist Papers, as the definitive explication of our Constitution's original intent, clearly define original intent in regards to Constitutional interpretation. Founders James Madison (our Constitution's principle author), Alexander Hamilton and John Jay, published the Federalist Papers in order to clearly delineate the parameters of the proposed Constitution.

In regard to the role of the judiciary, Federalist Paper No. 73, notes, “Judges…by being often associated with the Executive…might be induced to embark too far in the political views of that magistrate, and thus a dangerous combination might by degrees be cemented between the executive and judiciary departments. It is impossible to keep the judges too distinct from every other avocation than that of expounding the laws. It is peculiarly dangerous to place them in a situation to be either corrupted or influenced by the Executive.”

Federalist No. 78 further notes, “[The Judicial Branch] may truly be said to have neither FORCE nor WILL, but merely judgment…liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.”

And in no uncertain terms, Federalist No. 81 makes abundantly clear, “[T]here is not a syllable in the [Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution….”

George Washington advised, “The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution which at any time exists, 'till changed by an explicit and authentic act of the whole People is sacredly obligatory upon all.”

Today, two centuries hence, Justice Antonin Scalia says of judicial activism, “As long as judges tinker with the Constitution to 'do what the people want,' instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically.”

The most insidious line of activist interpretations concerns our Constitution's First Amendment. Invoking Jefferson's “Wall of Separation,” the Despotic Branch has endeavored to remove any vestigial remnant of faith from all quarters of the public square at the federal, state and local level.

Of course, the First Amendment states only that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

The errant interpretation of the “wall” metaphor puts liberty in great peril.

Our Declaration of Independence and its subordinate guidance, our Constitution, are based on natural law, and outline the natural rights of man as being from our Creator, not manmade.

“Life, liberty and the pursuit of happiness” are natural rights “endowed by our Creator,” not government. Likewise, our Constitution was written and ratified “in order secure the Blessings of Liberty to ourselves and our Posterity.” As such, it established a republic ruled by laws, not men.

Indeed, as Alexander Hamilton wrote, “The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power.”

However, if the expression of faith is banished from all government forums, not the least of which being schools, then how long will “the people” continue to understand that these “inalienable rights” are, in Jefferson's words, “the gift of God”?

The late Supreme Court Chief Justice William Rehnquist concluded, “The wall of separation between church and state is a metaphor based upon bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned. … The greatest injury of the 'wall' notion is its mischievous diversion of judges from the actual intention of the drafters of the Bill of Rights.”

George Washington proclaimed, “[W]here is the security for property, for reputation, for life, if the sense of religious obligation deserts the oaths…?”

That is a question we should all be asking today.

While the words “conservative” and “liberal” are ubiquitously used to describe Republicans and Democrats respectively, these words properly should describe whether one advocates for the conservation of our Constitution, as originally intended, or its liberal interpretation by judicial activists. Does one want to conserve Constitutional limits on the central government, or liberate those limits?

Our Constitution established a Republic intended to reflect the consent of the governed, a nation of laws, not men.

At the close of the Constitutional Convention in Philadelphia, Benjamin Franklin was asked if the delegates formed “a republic or a monarchy.” He responded, “A republic if you can keep it.”

To that end, John Adams wrote, “A Constitution of Government once changed from Freedom, can never be restored. Liberty, once lost, is lost forever.”

We invite you to observe Constitution Day by visiting an excellent resource on our nation's heritage. Link to The Patriot's Historic Documents, and see our excellent selection of Constitutional items at our Patriot Shop

View all comments


Betty V Michel said:

Its unfortunate that more people do not realize what they are giving up. This Constitution was made up for the people, of this country, to have the right to have their freedom, and to praise god in their own religion, and not be persecuted for it. It wasn't made to repress God, this country was brought in to being because of it. And not being able to say merry Christmas to some one is outrageous. If people dont like the way our country is made, then leave, no one is stoping you.

Tuesday, December 22, 2009 at 8:52 PM

BrainerdRebel said:

"We Federated for Foreign affairs only, all Domestic affairs are left to the States, or to the People." Thomas JeffersonWe did not Nationalize, we Federalized.

Tuesday, December 29, 2009 at 7:18 PM

Mike McKenzie said:

You would think this president and his fellow dems would sit back and realize we the people have spoken in MA. The replublicans now need to move ahead and get things done--hopefully they will do some good. If not we need to vote them all out and start over and of course this should begin with the president.

Thursday, January 21, 2010 at 12:07 PM

Kovarka said:

Replace ALL incumbents! VOTE THEM ALL OUT OF OFFICE!

Thursday, March 4, 2010 at 12:25 PM

Rick said:

The Best thing that Patriots can do for OUR Country is to keep e-mailing the Patriot Post to EDUCATE people about OUR Constitution.Send it out to Our Elected Reps while your at it... The schools and colleges today white-wash Our great Documents and sweep them under the rug...ask any high schooler what the Bill of Rights are....they have no clue.Very sad

Thursday, March 11, 2010 at 2:34 PM

A Proud Patriot said:

We, the People, must take back the control of OUR government. Too many things are happening to erode our Constitution, our Bill of Rights every week. It is time for All Good Men and Women to Come to the Aid of Their Country. Wake-up and smell the coffee. If you don't know how very serious this situation is right now, then educate yourself around these issues. It reminds me of how to catch wild pigs. Every day you fill the trough with corn and put up a small section of fence. On the last day, the last section of fence goes up and then....the pigs are no longer free.

Friday, May 14, 2010 at 11:17 AM

Daniel Hall said:

On May 21, 2011 Jesus Christ is coming again and will gather up His elect (chosen before the foundation of His creation we call "mankind") securing them with Him into a new heaven and a new earth. Left behind will be all those whom He has given life, for which they, as those whom He gathered, have lived and ought to be wholly thankful to Him for that life. As our American's) Constitution dies, so for the next five months will all that is left die. Pray you are among those whom are being redeemed. May our LORD AND SAVIOR richly bless you. REF: "We Are Almost There" derived wholly from God's Word the Bible.

Tuesday, June 15, 2010 at 1:10 PM

The Scarlet Pimpernel said:

The whole POINT of a national Constitution is to have a set of laws that DON'T change with every shift in the political wind, and are NOT subject to "modernized" interpretations whenever it's politically expedient.

Wednesday, June 30, 2010 at 12:12 PM

VS said:

We have been blessed with an incredible Constitutuion and its eternal mandates of life, (all life), liberty, (freedom from tyranny) and the pursuit of happiness,(being content/fortunate/blessed), with protection and justice for all the people. It has been worth fighting for, marching for, and being proud of. Do not let our Constitution be trampled on or defiled. Too many have givening their lives so it may live.

Thursday, July 1, 2010 at 9:42 PM

Christopher Kylin said:

The one comment about Marbury v. Madison is wrong. When the court there says that it is is job alone to say "what the law is", in context, it is clear that the court is saying *law* as distinct from say *equity*. The rest of the decision goes on at length to say that the courts have no role in policy questions, or policy at all. Just what the words of a statute say in plain English.This was written about at length in the 80's by Robert Lowry Clinton, a historian, in "The Marbury Myth". Everyone interested should read it, especially Mark Alexander.

Thursday, August 26, 2010 at 7:49 PM

Glen said:

Our Constitution is (and always has been) current and relevant to our freedoms and our hopes. It is when men take it out of context or attempt to alter it to suit their own agendas, that we suffer. Much like the Holy Bible, neither need amending. Wither you believe in God or not is not the issue, it is the values that are important. Freedom is something given to men. It should never come at the expense of enslaving those already free. Taking away my freedom should not be the basis of your freedom.Glen

Thursday, September 16, 2010 at 12:01 PM

Rickey said:

BrainerdRebel,If by Foreign Affairs you mean interstate commerce among the states, then you are correct. One of the primary reasons the constitutional convention was convened is because the Articles of Confederation did not effectively regulate interstate taxes and tariffs among the states. The states were imposing all sorts of different taxes and tariffs on each others exports/imports depending on their local economic weaknesses and strengths. They were trying to protect their own at the expense of the other or others. They were also fighting over navigation rights along common water ways.Unfortunately, the interstate commerce clause of our constitution has been thoroughly molested and abused by numerous congresses and courts since the early 20th century. Most recently in the Affordable Healthcare Act. Our founders must be are completely exhausted from all the rolling over in their graves. What a shame.

Thursday, April 7, 2011 at 10:42 PM

Abu Nudnik in Toronto said:

@Rickey: Therefore proving that "regulate" meant to "make regular" interstate commerce: a free trade America in today's terms.

Thursday, June 2, 2011 at 1:47 PM

Allen Goldberg said:

allowing Time magazine, an opinion when they are the voice of LIBTARDS is a mistake.This writer simply ought to have his mouth washed out and be sent back to school.

Thursday, June 30, 2011 at 1:20 PM

NeoConVet said:

It seems that the leftist at Time Magazine have demonstrated their own demise and irrelivance as compared to a Document (The US Constitution) that must prevail and endure.

Thursday, June 30, 2011 at 6:49 PM