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Tuesday, February 16, 2016

The Living Constitution

I've often written about the problem of the fluid language we call English. Oh, of course it changes. How could it not? English speakers of the 17th century, for instance, had no perception of capillary electrophoresis (yeah, I know, most of you don't either), so when that concept came around, we had to invent a term. New terms or borrowed terms are needed as new things occur. It's a given. But we've moved beyond that in the last 50 years or so. Modernism argued that reality could be determined by reason and evidence. Post-modernism has discarded Modernism in favor of feelings. In this "Age of Empathy", reality is how you feel it is. Thus, if a guy feels like he's a girl, our society says he is. Well, a primary component of the Post-modernism is the argument that words do not mean anything more than what we want them to mean. Words express ideas. Ideas are fluid. So words are fluid. The problem, though, is that if words express ideas and you may or may not have the same ideas about the words I'm using that I do, the possibility of actually transmitting my ideas to you is extremely poor. By making language fluid, communication becomes difficult at best.

The problem arises not when words are simply changed, but when their ideas are changed. Consider this. Once we held that pornography should not be allowed in our communities, but that free speech was protected. No problem. Except they figured out that if they could stretch "speech" to include "naked bodies engaged in graphic sexual perversions", well, then, it would be protected. And the courts bought that. Some years ago Facebook had a rule in place that pictures of nudity would not be allowed. So now they're being sued in France because they cancelled the account of a guy back when the "no nudity" rule was in place and he posted a photo of a nude painting. Facebook says that more recently they changed the rule so that art would be allowed, so nude art was okay. You see where this is going, don't you? Shift "speech" to include "graphic sex" and you have it protected. Shift "art" to include "pictures of me and three of my closest friends engaged in all manner of sexual escapades" and Facebook will have nothing to say. These aren't shifts in words; they're shifts in concepts.

But this isn't about words. It's about another fluid concept. Perhaps you've never heard of the Living Constitution idea. It stands in contrast with what is called "Originalism" which holds that the U.S. Constitution has a meaning, an original meaning, unchanged and without variation. The Living Constitution concept, then, is that our Constitution is dynamic, a sort of animate being that grows and changes to fit the need. While Originalism holds that we need to view our laws through the lens of the 18th century framers of our Constitution, the Living Constitution interpretation would say that the views and desires of the current society should be included in interpretation of the Constitution. Things change; so should our Constitution.

Of course, we've always had the ability to change the Constitution, as evidenced by the 27 amendments to it. The Bill of Rights started as amendments to our Constitution, clarifications required to avoid problems with the original document. Change is included in the concept of the Constitution. But that's not the idea of the Living Constitution. No, that one makes the Constitution as fluid as today's version of gender. It means whatever the court of the day says it means. And when they say it, it becomes permanent law.

As you can imagine, the "Originalism" position is staked out by conservatives while the "Living Constitution" notion is preferred by progressives. That shouldn't be news to anyone. Of the nine justices, it has been regularly considered that Justices Alito, Thomas, and Scalia were the most conservative, with Roberts conservative-leaning. Justices Kennedy and Breyer have been mostly moderate. From there we pile up an increasingly progressive set of Justices. With the death of Justice Scalia, we see the possibility of a sharp change to the court. President Obama appointed the two most progressive Justices on the court, Justices Sotomayor and Kagan. If he nominates the next Justice, don't look for a conservative. Here's the problem. The more progressives placed on the Supreme Court, the less meaningful content is found in the Constitution. If, in fact, the Living Constitution version wins out, the reinterpretation of your freedom of speech, freedom to bear arms, freedom of religion, whatever God-given rights you may think your Constitution protects will be up for grabs, ripe for reinterpretation, victims of the views and desires of the current society as interpreted by the current court. And if President Obama gets to install a third Supreme Court Justice before he leaves office, count on it.

What am I suggesting? Campaign? Obstruct? Raise an outcry? Well, no. That's not me. I am suggesting that Christians everywhere pray. I am suggesting it because it's biblical. "I urge that entreaties and prayers, petitions and thanksgivings, be made on behalf of all men, for kings and all who are in authority, so that we may lead a tranquil and quiet life in all godliness and dignity." (1 Tim 2:1-2) Do you feel the need to do something more? Then do it (within limits, of course). But don't neglect this. I suspect that too many of us already have.

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