Equality, the Rule of Law, and ‘Living Constitution’ Theory

Equality, the Rule of Law, and ‘Living Constitution’ Theory

In a span of a few days, our nation’s faith in our equality before the law and in the rule of law itself, upon which all of our liberties depend, has been tested.  Because the controversies have impacted people across the political spectrum, we have an opportunity to come together and affirm these core principles that unite us as a nation.  We must mourn, we must learn, and we must improve.  Those improvements should include a re-dedication to the equal treatment of all citizens based on fixed principles of law.  Is this compatible with the de-prioritization of the Constitution inherent in the ‘living Constitution’ school of Constitutional interpretation?

The rule of law and equality before the law.

Why are government officials bound by the law?  Why aren’t they, as kings once asserted, above the law?  Because we believe, and many who came before us lived and died establishing, that our government is one of legitimately enacted laws, not one dictated by the passing whims of leaders who are above the law.  This is the necessary conclusion from the incontestable truth that all of us are born with equal political rights despite any other differences and that we formed our government to serve us by protecting our rights.  It proceeded from our belief that the government and the governed are bound together by what was effectively a contract.  And when it was believed that our rulers breached that contract, our nation fought for its freedom.  Our Declaration to the world that we were claiming our freedom and no longer a king’s subjects plainly stated our belief and our cause: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”  Our national government was formed a short while later, after its design was debated, terms were reduced to a written Constitution, and it was ratified.  Over time, the Constitution was improved and remains the supreme law of the land.  In light of recent events, we would do well to recall that the Constitution begins with the following explanation of its purpose:  “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.”

Our nation remains one created, defined, and held together by these ideas and the Constitution that embodies them.  America would not be the America we love today if it did not stand for equality before the law in a nation governed by laws.  And any right to equality before the law is meaningless if the nation is not governed by laws in the first place.

De-prioritizing the Constitution.

If the values and rights the Constitution embodies and protects are forgotten and disregarded, it will not have been the product of mere negligence or inattention.  Ignorance of the Constitution is widespread and distinguished figures in the law are candid about their devaluation of the Constitution as a fixed agreement on which we can rely.  One of the most influential judges and legal thinkers in our time, recently wrote:

“I see absolutely no value to a judge of spending decades, years, months, weeks, days, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuries—well, just a little more than two centuries, and of course less for many of the amendments). Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century. Which means that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14th), do not speak to today . . . . The Supreme Court treats the Constitution like it is authorizing the court to create a common law of constitutional law, based on current concerns, not what those 18th-century guys were worrying about.  In short, let’s not let the dead bury the living.”

This Judge has since offered an apology of sorts, but one that is not materially different from what he suggested above.  (“The framers of the Constitution were very intelligent and experienced, but they could no more foresee conditions in the 21st century than we can foresee conditions in the 23rd century. So the choice for the modern judge is: dismiss the bulk of the Constitution as nonjusticiable because it doesn’t address modern problems, or decide many constitutional cases by broad interpretation of the Constitution’s vague provisions, recognizing that interpretation so understood is not what we usually understand by the word.”)  In his view, the Constitution does not embody an agreement based on certain fixed values and rights that are ascertainable.  Rather, proponents of a ‘living Constitution’ believe judges have the power to decide what the Constitution means today as they see fit based on their own values.  (In contrast , others would have judges attempt to deduce the terms as they were understood when the country adopted the Constitution or would defer to the text of the Constitution.)  This ‘living Constitution’ school grants a lot of power to judges, who are appointed for life, and its prevalence is one reason that the nomination of judges is highly contentious and contributes to the perception of judges as biased political agents.

If the ‘living Constitution’ school is correct, what does it mean for the rest of us?  The terms of the Constitution describe a balance between government powers and citizen rights, with the powers of the federal government both limited and listed along with a list of just some of our rights.  If the foundation of our legal order is itself merely a matter of interpretation based on the values of the interpreter, then what of the 14th Amendment, one of the provisions singled out in the quote above as not worthy of study?  It includes the following clauses, which have more than a little bearing on the anguish that has plagued our country this week:

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The 14th Amendment is the part of the Constitution that makes the Bill of Rights (freedoms of speech, association, press, religion, arms, etc.) applicable to the actions of state governments. This is a principal source of power behind application of federal civil rights laws to the actions of state and local government officials, including police. Can there be any question that it is worthy of study?


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