Source; Chet McAteer;
The "Living Constitution" Belongs in the Trash Can: Originalism, State Sovereignty, and the Lessons of Soviet Tyranny
[“Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.”–attribution: James Madison]
The “Living Constitution” is not an organic evolution of American Constitutionalism. It is a twentieth-century progressive innovation that inverts the Founding design, converts a written barrier into a blank check for transient power, and systematically undermines the dual Sovereignty that the States as Free, Sovereign, and Independent republics were intended to maintain as the primary check on federal excess.
The claim that the Constitution must “grow with us,” that its meaning shifts with the times or with the moral intuitions of whoever currently holds institutional power, is not fidelity to the document. It is its effective repeal by other means. It belongs in the trash can of erroneous historical interpretation.
The Founding Design: Fixed Text, Enumerated Powers, Residual State Sovereignty
The Constitution of 1787 was not drafted as a living organism. It was a deliberate compact among the States. The Declaration of Independence treated the former colonies as free and independent states. The Articles of Confederation declared them “sovereign, free and independent.” The Constitution was proposed by a convention of the States, submitted to the people of the States acting in their separate political capacities, and took effect only upon the consent of the required number of those States. James Madison, in Federalist No. 39, described the resulting government as “partly national, partly federal.” In Federalist No. 45 he stated the decisive allocation of power with crystalline clarity:
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
The Tenth Amendment simply codifies what the structure already established: powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively, or to the People. There is no general federal police power. There is no Constitutional warrant for the federal government to “regulate the States” on matters of internal order, medicine, public health, or contested moral questions such as abortion.
Those residual powers belong to the States as the primary repositories of sovereignty they never surrendered. The amendment process in Article V exists precisely so that change, when desired by the requisite supermajorities, occurs through deliberate, visible, and difficult political action rather than through judicial or bureaucratic redefinition of existing text.
This architecture was not accidental. The Framers had lived under parliamentary supremacy and under the flexible, unwritten practices of the British Constitution. They chose a written Constitution of limited and enumerated powers precisely to create a fixed barrier against the very kind of evolving interpretation that "living" Constitutionalism celebrates. Public meaning at the time of ratification was the measure of the text.
Subsequent generations were bound by that meaning unless and until they amended the document. Anything else collapses the distinction between constitutional law and ordinary politics.
Living Constitutionalism Defined: Meaning Supplied by Power
Living Constitutionalism rejects that restraint. It treats the Constitution as a set of broad principles whose concrete application must expand or contract according to contemporary needs, evolving standards of decency, or the perceived requirements of a changing society.
In practice this means that judges, administrators, or national majorities assign new content to old words. The text remains, but its operative meaning is supplied by those who control the institutions of interpretation at any given moment. The document is no longer a constraint on power; it becomes an instrument of power.
This is not “growth.” It is a vile and dangerous substitution. When a court discovers a "right" that no one in 1787 or 1868 understood the text to contain, or when a federal agency claims authority the text never conferred, the "living" Constitution has performed its characteristic work: it has neutralized the original limitation so that a preferred policy can proceed.
The claim that “we are different from who we were in the 1700s and the documents need to grow with us” is simply the candid acknowledgment that the speaker prefers current political preferences to the actual Constitution.
The Amendment process is treated as optional or too cumbersome. Interpretation does the work of amendment without the inconvenience of securing the consent of the governed through the prescribed forms.
Historical Error and Practical Consequences
The historical error is fundamental. The Framers knew how to write flexible language when they wanted it. They used terms of art whose meaning was fixed by contemporary usage. They created an amendment process for change. They did not invite future generations to rewrite the bargain under the guise of interpretation. Early practice confirms the point. Controversies over the Bank of the United States, the Alien and Sedition Acts, and internal improvements were fought in terms of original meaning and the residual sovereignty of the States, not in terms of evolving national needs.
The "living" Constitution is a later invention, popularized in progressive legal thought and institutionalized in the mid-twentieth century, that treats the founding generation as bound by their times while liberating later elites from the same constraint.
The practical consequences are visible. Roe v. Wade was the classic product of living constitutionalism: a contested moral and medical question nationalized by judicial invention of a right nowhere in the text or its original understanding. For nearly fifty years the States were disabled from regulating in their traditional sphere. Dobbs restored the Constitutional baseline by returning the issue to the democratic processes of the States, the precise result the design contemplates for residual powers.
The demand that the federal government must now “regulate the States” because some States have chosen restrictive regimes simply restates the "living"Constitution premise: national uniformity enforced by federal power is preferable to dual Sovereignty.
Claims of “deaths of women over abortion” are advanced as moral trump cards. Even accepting contested empirical associations between restrictive regimes and certain mortality metrics, the proper remedy remains State political processes or a national amendment if consensus exists.
Inventing a federal power that the Constitution never granted is not compassion; it is usurpation justified by living interpretation.
The International Record: Living Constitutions as Tools of Centralized Power
The danger is not theoretical...Regimes that treated their constitutions as living or flexible instruments have repeatedly neutralized their own bills of rights in the service of political ends. The Soviet Union supplies the clearest case.
The 1936 “Stalin Constitution” was proclaimed the most democratic in the world. Article 125 guaranteed freedom of speech, press, assembly, and street demonstrations, to be secured by providing the people with the material means of expression. Other articles promised inviolability of person and home, freedom of conscience, equality, and universal suffrage by secret ballot.
On paper it looked progressive, expansive, and responsive to the needs of a new Socialist society.
Yet the same article immediately qualified the rights: they existed only “in conformity with the interests of the working people and in order to strengthen the socialist system.” The Communist Party alone defined those interests. Within months the Great Terror began. The rights were rendered dead letters.
Dissidents, religious believers, national minorities, and even many of the Constitution’s own drafters were arrested, tried, or executed. The document became, in the words of one observer, “a veil of liberal phrases and premises over the guillotine in the background.” Later Soviet Constitutions repeated the pattern.
Chinese Constitutions have long listed extensive Rights while subordinating them to the interests of the state and the leadership of the Party. North Korea does the same. In each instance the mechanism is identical: the text is treated as living or flexible; meaning is supplied by those in power; the written Law of the Land is neutralized so that ideology or political necessity can proceed without legal constraint.
These are not distant curiosities. They illustrate the structural logic of living constitutionalism when it operates without rigid textual fixation and without competing sovereigns capable of checking the center.
Once the premise is accepted that the Constitution must grow with the times or serve the needs of the moment, the only remaining question is who decides what those needs are.
Centralized power answers that question in its own favor...
Dual Sovereignty as the Structural Safeguard:
The American answer was never to trust the good intentions of those who hold federal office. It was to divide sovereignty. The States remain Free, Sovereign, and Independent republics for all powers not delegated.
They are the primary check on federal excess precisely because they are not administrative subdivisions. Local majorities check national majorities. Residual police powers remain close to the people who must live under them.
When "living Constitutionalism" seeks to nationalize every contested question under a federal “umbrella,” it aims to eliminate that check. The result is the consolidation the Anti-Federalists feared and the Federalists promised would not occur.
A Democratic Republic of the American type is a compound republic. Equality under the law does not require identical policy outcomes on every moral question. It requires that each sphere of government remain confined to its proper objects.
The "living Constitution" dissolves that confinement. It treats the States as obstacles to be regulated rather than as Sovereigns whose Consent created the federal government in the first place.
Into the Trash Can...
The living Constitution is not a sophisticated theory of interpretation. It is an erroneous historical perversion that the Founding generation wrote a document whose meaning they intended later elites to supply according to contemporary preference.
That claim contradicts the text, the ratification history, the amendment process, the structure of dual Sovereignty, and the early practice of Constitutional argument. It has been used to invent Rights and Powers the Constitution does not contain, to disable the States in their residual sphere, and to convert a written limitation into an instrument of national power.
The international record shows where that logic leads when structural checks are absent or weak: Rights on paper, meaning determined by those in power, and the Law of the Land reduced to a political tool.
The Constitution does not need to grow with us. We are bound by it until we amend it through the forms it prescribes. The States, as Free, Sovereign, and Independent republics, remain the primary structural safeguard against federal excess.
Original meaning, enumerated powers, and dual sovereignty are not archaic relics. They are the only coherent republican framework that treats the written Constitution as law rather than as a platform for the preferences of the moment.
"Living Constitutionalism" belongs in the trash can of historical error.
In Liberty,
-cmcateer
References
The Federalist Papers, Nos. 39, 45, 46, and 51 (Madison).
U.S. Constitution, Article V and the Tenth Amendment.
Constitution of the Union of Soviet Socialist Republics (1936), especially Article 125.
Olga Velikanova, studies on the 1936 Soviet Constitution and nominal democracy under Stalinism.
J. Arch Getty and other historians on the gap between the Stalin Constitution’s text and the Great Terror.
Contemporary analyses of Soviet, Chinese, and North Korean constitutional practice demonstrating the subordination of rights to Party or state “interests.”
Dobbs v. Jackson Women’s Health Organization (2022) and the restoration of state authority over residual police powers.
Originalist scholarship on the fixed public meaning of the Constitution at ratification versus progressive living-constitution theories.
Replies
Of course the liberals want to make it a 'living document' Living things can be killed!
Fabulous forum post. Congress should read this entire thing and read it again. And again.