Thus spoketh my dad....

Here's a comment my dad wanted to post on his constitutional law theory. Given its length and the original post is already several weeks old, I decided to post it here. My response to follow at some point.



The Constitution is not living or breathing. Neither is any other law or legal document written by human beings. E.g., when Congress enacts legislation, it becomes a part of the U.S. Code. Such code is not considered to be living or breathing. If one year later a change needs to be made to that law, then another law is enacted that contains a very precise description of what part of the previously enacted law is to be changed; e.g., the new law might say "section 3, paragraph 5: the phrase "is valid" is hereby changed to read "is invalid"." Or it might say "the third comma in sub-paragraph 4B is hereby changed to a semicolon." Neither the older law being changed nor the newer law doing the changing is living or breathing.

Similarly, the Constitution contains within itself the description of how the Constitution is to be changed. It is called "Amendments" to the Constitution. This has been done several times in the past as the national mindset on a certain subject has changed. For example, slavery was made unconstitutional and illegal by amending the Constitution rather than finding a new interpreation for the original wording that allowed slavery to exist. Also the national mindset did two flip-flops over alcoholic beverages, and this resulted in two Constitutional amendments. The mood of the nation is living and breathing, not the Constitution.

Federal courts do not come to a new understanding of the words or punctuation marks in an existing Federal law contained in the large body of laws known as the United States Code. If a law is defective, then Congress has the responsibility to create a new law that removes the defect. If there is a defect in the Constitution, then the states need to amend the Constitution to remove the defect.

Why is the Constitution more alive than federal, state, or municipal laws that all must be modified by enacting a new law? Why is the Constitution deemed alive over only certain subjects, such as keeping and bearing arms, but not over other subjects, such as the existence of the House of Representatives and the Senate? If the Constitution is truly alive and breathing, then we should expect that someday our Supreme Court will be able to rule in favor of the dissolution of Congress.

I don't think so.

I think the real reason that some people want the Constitution to be alive is so that they can disregard any particular part that displeases them, without going to the bother of amending the Constitution, because they know that their attempt to amend the Constitution will fail.

The Constitution definitely has flaws. The best over-all descriptions of its flaws that I have ever read was written by the Massachusetts anarchist Lysander Spooner in 1870: "But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist." The government that was so revolting to him in 1870 was the government that produced our Civil War, inter alia. Read more of his writings to find out all the other reasons why he loathed the U.S. government if you wish. Today's situation is far worse than it was in 1870, with our imperial President claiming on one hand the right to do anything he wants in the name of "national security" because the Constitution has placed him in the office of President, yet on the other hand he angrily screams in the Oval Office "Stop throwing the Constitution in my face. It’s just a goddamned piece of paper!" whenever someone suggests to him that something he wants to do might not be Constitutional. This logical extreme of the concept that the Constitution is alive has produced a megalomaniac President with essentially unlimited power and a nation and Congress that sheepishly allow him to remain in office instead of putting him in prison where he truly belongs.