Let’s say that you are dropping by your local sandwich shop to grab a sub on the way home from work. As you’re arriving at the sub shop, your roommate calls and asks if you can grab him a turkey sub and bring it home.
Your reaction here should be obvious. Provided that you are a good roommate, then you will order a turkey sub and bring it home.
But let’s consider a variant of this scenario. In our variant scenario, your roommate asks for a sub and you agree to bring one home, but his phone’s battery dies before he tells you what kind of sub he wants. In this scenario, you’re still on the hook to bring home a sub, but you will have to guess what type of sub he wants.
How can you guess what type of sub your roommate wants? To most people, it is a pretty intuitive process. You have to think as though you were your roommate, going in to order a sub. To do so, you have to remember what types of subs your roommate has ordered in the past, and then from that information you have to try to figure out what kind of sub the “spirit” of your roommate would order, if he was standing at the counter making the decision right now. In this way, you can make an informed guess about what kind of sub your roommate would want.
The reason I created this thought experiment with the sandwich-ordering is because it is useful in shedding light on how we should go about making a larger, more important decision: namely the decision about how we might apply a fixed, written code of law in a dynamic, modern world.
Case in point: the US constitution. There are those who believe that the Constitution is a static document and those who believe that it is a living document. Those who believe that it is a living document believe that the “spirit of the document” can be used to settle constitutional issues. Those who believe it is a static document argue that it must only be read as written.
The problem is that if you are to accept a hard line on either of these positions, then you will run into one type of trouble or another. It can be argued, for instance, that a static-constitutionalist will never be able to pass a law allowing for privacy on the internet, because the Constitution does not mention the internet.
In the modern day, variants of this argument have allowed living-constitutionalists to gain a strong footing. But when this happens, we enter a state of subjectivity. Each judge might interpret the spirit of the Constitution to be a different thing, and so there ceases to be an objective standard against which judgments can be made. Instead, each judge trumpets his own snippet of the Constitution, which he believes shows that the spirit of the document leans toward such-and-such a conclusion.
So, when we give the living-Constitution subjectivists their day, we end up with a form of chaos in which each interlocutor has his own take on the document, and no group of people can agree. This leads to factions, and at the end of the day, whichever faction has the most people is that which ends up getting their way. This, obviously, is an undesirable way to run a constitutional government.
How do we solve this dilemma? If neither the living or the static constitutionalists can create an orderly standard for applying the Constitution to a changing world, then what can we do to fix this?
In order to answer that question, let me ask this one: if you are ordering for your friend at the sub shop, and he tells you that he wants a BLT, then is it appropriate to order him a pastrami instead? The answer, as should be obvious, is no. You can only be reasonably expected to make a guess about your roommate’s order in cases where your roommate has not already told you his order. To do otherwise would be obnoxious!
This standard, when applied to Constitutional cases, is a very reasonable way to bifurcate between when you can reasonably be expected to use living-Constitution methods versus static-Constitution methods to judge a Constitutional case.
To wit – if the Constitution directly mentions the topic at hand, then constitutional judges must judge the case by the written language in the constitution. (This is relevantly similar to you going to the sub shop with your roommate’s order.)
If the Constitution does not mention the topic at hand, then, in order to make a judgment on this topic, we must make a good-faith attempt to figure out what the writers of the document would have done if confronted with the case which is before us. We do this by analyzing the document’s spirit. (This is relevantly similar to guessing what someone who hasn’t given their order would want.)
By doing this, we can allow room for the Constitution to “live” without trouncing all over its original meaning.
Let me close by giving an example of the type of issue which is present today, which this standard will eliminate:
There are those who believe that to regulate gun ownership is constitutional. They justify this by saying that the Constitution was written by people who believed in a “right to life,” and that guns are contrary to the preservation of life, and therefore that the spirit of the Constitution would allow for gun control laws.
In this case, the living-constitutionalist oversteps the bounds of common sense. The chink in the armor of his argument is that the Constitution affirmatively protects freedoms of gun ownership in the Second Amendment. It is as ridiculous to try to use the spirit of the Constitution to overrule the words of the Constitution as it is to order a friend a different sub than the one he asked for.
If we can follow the simple, common-sense method outlined in this article, then we can avoid both the impotence of the strict static-constitutionalist and the fecklessness of the unchecked living-constitutionalist.