my Trade Tripper column in the 22-23 January 2016 issue of BusinessWorld:
Perhaps the error starts way back in law school. There, the unsuspecting law student becomes brainwashed with the notion of the “living constitution,” the idea that the words of the fundamental law can “evolve,” it not being “static,” and is supposed to “keep up with the times.” And this had always been partnered with the idea that the venerable Supreme Court is the final defender of the Constitution. If only such were true. And thankfully, they’re not.
But because of this myth (yes, it’s a myth) of the living constitution (actually a legal theory propagated by liberal law professors in the US), we accepted the quite undemocratic idea that the Constitution (or any law) for that matter is “what the Supreme Court says it to be.”
Which brings us -- amidst all the pressing problems facing the country -- to today’s divisive distractions: Who qualifies to run for president (despite the fact that the qualifications are expressed in declarative sentences)? Can the country have another autonomous region (when the Constitution expressly enumerated them already)? Who can get married? Can fetuses be aborted? And on and on.
The answers to the foregoing, which are commonsensically clear, are being muddled to advance a political agenda. And you can bet that the one with the confused argument will say that the Constitution should be read “flexibly” and “in keeping with the demands of justice,” of which “justice” is defined to be what would agree with their position.
Doubtless, jurists can wax poetic in saying the Constitution should “grow,” for it is a “living organism,” it must be “broad” and “flexible,” a “dynamic document,” as the drafters could not possibly anticipate the future.
All that sounds plausible. After all, if the Constitution is not “living” then it has to be dead. But on closer analysis, the idea is misleading.
To say a constitution’s words can just evolve presents huge difficulties: Who is to say it evolved? What would be the proofs required? To what extent it evolved? When did it evolve?
Note that whether it be the framers of the 1935, 1973, or 1987 Constitutions, they all took months of hard work carefully choosing the words (and their arrangement) of the Constitution. Why bother if the Constitution would just evolve anyway? They could have just written “ketchup” and say the word will evolve. And why bother drafting a new constitution? Just get the old one and say it evolved.
If indeed the Constitution becomes outmoded or needs to be kept up with the times, then that’s what the Constitution’s amendatory provisions are for. Some will complain that to change the Constitution is too difficult. And yet, it’s so difficult that the Americans amended theirs 27 times.
The inherent problem with the “living constitution” theory is that it is an excuse (usually made by leftist progressives) to deviously circumvent the will of the People, pushing their ideological agenda through the academe and the courts what they can’t successfully do through democratic elections.
In the end, after all, what is the Constitution except the written will of the People? It is the People that wrote the Constitution. They are the authors. Not government officials or academics, no matter how powerful or learned.
And since the People authored the Constitution, they are the only ones with the power to change it. Certainly, it can’t be altered by unelected officials. That’s grossly undemocratic. But even elected ones can’t as well. Congress’ authority is to make laws that comply with the Constitution. The president’s job is to apply the constitutionally compliant law.
Leading us back to the Supreme Court, whose mandate is simply to look at a law’s cons-titutionality. And most of the Constitution’s provisions are pretty clear-cut. Granted, there are the “majestic generalities,” as Holmes would put it. Also the unfortunate “grave abuse of discretion” clause, which allows an unelected judiciary to substitute its preferences over that of the people’s elected legislature.
Nevertheless, the Supreme Court’s function remains merely to uphold the Constitution, in accordance with the People’s intent, beliefs, and values at the time they authored it. Not the justice’s personal views or wisdom. And surely such intent, beliefs, and values, with all the media, official records and technology available, can be gleamed from a document (the 1987 Constitution) made less than 30 years ago.
As to being “the defender of the Constitution”? Nowhere in the Constitution is that title given to the Supreme Court.
Like any man-made institution, any supreme court will be fallible. Roe vs Wade, Dred Scott, and our very own Martial Law cases attest to that. No. The final and true defender of the Constitution is its author: the People.
Finally, shallow politicians make much of the argument: “let the people be heard.” Well, the People created a system where it is heard: through the Constitution and every time there is an election.
Outside of that is just the noise of the mob.