by Timothy Baldwin
Constitutions are supposed to be formedâ€”as well as abolished, altered or amendedâ€”based upon natural law principles, human experience and foresight. The United Statesâ€™ history confirms this reality. The Constitution of the United States of America (â€œUSCâ€) was in large part proposed and ratified because the States supposedly could not work together efficiently and in harmony enough for the union to effectively work. Some of the proponents of the USC (known as Federalists) were little concerned that the newly-constructed federal government would ever outweigh the States in power and function. On the other hand, opponents to the USC (known as Anti-Federalists) insistently and adamantly argued that the federal government wouldâ€”eventuallyâ€”outweigh the States in power, causing a harmful scenario for liberty. In either regard, however, the USCâ€™s enactment was deemed a political response to a societal condition.
However, since 1870, many legal theorists propose that the USC is aÂ living constitution that can change in meaning and application over time; that power and authority is relative to the circumstances of the day; that enumerated powers must evolve with condition of society; and that the arduous labor of constitutional amendments need not be utilized to correct flaws in the system. Today, it is a common notion that many lay persons hold and many politicians claim is a political truth.
Of course, these same persons use this theory to empower the federal government to the exclusion of State authority; or at least, to passively allow the federal government to perform whatever it claims the power to do. Never do they use the same theory to place power back into the hands of the States in compliance with the original meaning of the USC. Conveniently, those who hold these political and constitutional positions areÂ strict constructionists when it comes to limiting the States but areÂ evolutionary constructionists when it comes to empowering the federal government.
Interestingly enough, the USC was originally proposed and ratified under this stigma: those who were afraid that the federal governmentâ€™s power would become too great were not to be taken too seriously and to be treated in almost a comical fashion. Anti-Federalistsâ€™ warnings regarding the federal system were subservient to Federalistsâ€™ priorities. Consider what U.S. Supreme Court Justice, Joseph Story, said in 1833 concerning the positions of some of the Anti-Federalists on this point:
â€œOne cannot but feel, at the present time, an inclination to smile at the guarded caution of these expressions, and the hesitating avowal of the importance of the power. It affords, perhaps, one of the most striking proofs, how much the growth and prosperity of the country have outstripped the most sanguine anticipations of our most enlightened patriots.â€
By implication of Storyâ€™s admission, the USC was not formed as much upon human nature, the natural degradation of constitutions and the hazards of federal power but more upon the potentiality of a powerful federal government to facilitate ample amounts of wealth. Since that time, Storyâ€™s sarcasm equates more to irony now that the results of the USC have become essentially what the Anti-Federalists predicted. Still, even the Federalists held the USC to be a constitution of fixed meaning; not evolutionary or living. At least they stated with character and conviction what political maxims they believed to be true and did not hide behind metamorphosis ideology.
For one holding to the living constitution theory, how would he propose that the States regain the power they have lost over the past 200 years? How would he propose that the balance and limitations of government power be restored? Would these theorists allow, as they concede with Congress, the States to pass legislation they deem is in opposition to the USC given the political plight of the States? Would they allow the same pecuniary, discretionary and arbitrary power to rule as they concede the federal government has by virtue of whatever the U.S. Supreme Court declares? And if one would not concede that the federal government is so entitled to act, what is he to make of the union that has essentially permitted the federal government to act carte blanche? What would he think of the 1500-1800 A.D.Â political philosophersâ€™ maxims that usurping power must be resisted by equal or greater opposing power?â€“that the peace, happiness and well-being of the State is in actuality the supreme law of the land?
If the living constitutionalistâ€™s theory is correct, then the meaning and application of the USC cannot be used to bind the people and the States to a system damaging to their freedom when the federal government is not held to the same standard. Would one agree with Joseph Story?â€“thatÂ the federal government would become too powerful over the States is laughable?Â Upon the living constitutionalistâ€™s own prescription, the StatesÂ must use the same living means to do as the 14thamendment requires: that no privilege or immunity be denied the people of the States, which necessarily means ensuring that the federal government not trample upon the rights of the States under the tenth amendment. However, the reality is, living constitutionalists would only admit such an evolving power to the federal government, which reveals their political hypocrisy.
The result from this constitutional absurdity is constitutional anarchy. The federal system does not operate under political maxims; it operates upon political whim. What was supposedly the original meaning of the USC is deemed outdated and impractical. Circumstances are deemed to control the meaning of the USC.Â Consequently, new meanings and modern circumstances determine the extent ofÂ the federal governmentâ€™s power. Yet, the â€œtrue meaningâ€ of the USCÂ is strictly cited as a manner of restricting the States, all in the name of â€œadhering to the USCâ€.Â The constitutional standardÂ is duplicityÂ and is driven by whatever outcome a politician desires, depending on his ideology or worse, his own interest. But somehow we are supposed to believe that politicians practicing such beliefs actually understand what freedom is and care about actively preserving it.
It thus becomes very convenient (or really, surreptitious) for those in political positions to shirk their duty by referring to the USCâ€™s original meaning not to do what they are supposed to and referring to the modern-living constitution to do what they are not supposed to. It is no wonder that the only direction that seems to gain any momentum in the United States of America is the unstoppable slide down the muddy slopes of tyranny and oppressionâ€”the claim of loving freedom and constitutional government notwithstanding.
 Joseph Story,Â Commentaries on the Constitution of the United States of America, Vol. 3 of 3, (Boston, MA, Hilliard, Gray and Co., 1833), 22.
Timothy Baldwin is a Florida and Montana attorney who received his B.A. degree at the University of West Florida and graduated from Cumberland School of Law at Samford University in Birmingham, AL. After having received his Juris Doctorate degree from Cumberland, Baldwin became a Felony Prosecutor in the 1st District of Florida. In 2006, he started his own law practice, where he created specialized legal services entirely for property management companies. Baldwin is a prolific writer/columnist and writes for numerous publications, including The New American magazine. Baldwin is also an articulate speaker relevant to freedomâ€™s issues. Baldwin is an author of legal and political articles, as well as his latest book, Freedom For A Change (published by Agrapha Publishing). Baldwin has a working manuscript on Romans 13: The True Meaning of Submission and expects to publish this book soon. Baldwin is involved in important state sovereignty movement issues, including the federal litigation in Montana involving the Firearms Freedom Act. See his website.
Copyright (c) 2011 Timothy Baldwin