The Volokh Conspiracy - The Constitution as "a Living, Breathing Document":

I've got to defend Mike Huckabee from Hot Air on this one. Hot Air complains:

Video: Huckabee says the Constitution is a “living, breathing document” ...

I’m not going to rant about this. I will point out that Huckabee’s position doesn’t square up well with the Constitution’s amendment process — a process laid out precisely because it ought to be difficult to change the Constitution, but change is sometimes necessary, and it’s necessary because the Constitution isn’t a living, breathing document. If it were, as the proponents of that understanding tend to believe, you can find meanings in the penumbras of what’s actually written, meanings that might in fact be at odds with the plain understanding of the words themselves, without having to amend the document to find the new meaning therein. And I will also point out that the “living, breathing document” argument regarding the Constitution comes not from conservative or constructionist thinking, but from the left.

Make of all that what you will. Huckabee’s “living, breathing” statement hits at just under 4 minutes in....

To Hot Air's credit, the post links to the video, and the video is pretty clear on what Huckabee was actually saying:

[Narrator:] [R]ecently, [Huckabee] came under fire for suggesting that the constitution should be amended so that it was quote, "In God's standards." I asked him about that comment earlier on AMERICAN MORNING....

MIKE HUCKABEE, ... PRESIDENTIAL CANDIDATE: The constitution, the genius and the brilliance of it was that it was intended to be amended. That's why African-Americans are considered people, because we amended the constitution. As we needed to, to make sure that we ended slavery. We amended the constitution so women could vote. There were a lot of amendments including the first one, which gives me the right to worship or you the right to speak out and have free speech. The second amendment, which gives us the right to bear arms.

Those are all changes to the original constitution. My point was that the constitution was a document. It's a living, breathing document written in order that it could be changed. The scriptures, however, were not written so that we would change them to adapt them to ever-changing cultural norms.

Huckabee was arguing that there's nothing inherently wrong with amending the constitution — precisely because (in Hot Air's words) "change is sometimes necessary." Huckabee's reference to "living, breathing document" simply means a document that must remain relevant to today's problems, and that thus should be changed when change is necessary.

It's true that the phrase is often used by those who urge some degree of judicial updating of the constitutional rules, and generally more such updating than conservatives such as Huckabee like. But whether Huckabee was deliberately trying to appropriate the other side's metaphor to illustrate the right way of making the Constitution "liv[e]" and "breath[e]," or used the words without thinking of the way the other side used them, he expressly made clear that he was talking about using "the Constitution's amendment process" rather than about the judicial reinterpretation that Hot Air is condemning.

As to the supposed tension with Huckabee's Web site, which says (in the part Hot Air quotes), "I firmly believe that the Constitution must be interpreted according to its original meaning, and flatly reject the notion of a 'living Constitution,'" I think the tension is rhetorical and not substantive. On the site, Huckabee is explicitly condemning the "living Constitution" approach in the sense of judicial reinterpretation of the Constitution: "The meaning of the Constitution cannot be changed by judicial fiat." In the interview, he's equally explicitly talking about changing the meaning of the Constitution through the expressly constitutionally provided amendment process.

I think Fred Thompson's response is also overstated, and reads more into the use of "living, breathing document" than the context warrants. But at least Thompson expressly acknowledges that "Governor Huckabee was talking about amending the Constitution," and faults him chiefly for "using code words that support judicial activism." [Conceivable conflict-of-something alert: I've contributed to the Thompson campaign, and I'm a member of Lawyers for Fred Thompson.]

Thanks to InstaPundit for the pointer.

(link)

Vanceone (mail):

Interesting post, Mr. Volokh. I raised your post with Bryan, the HotAir webguy who posted the original, and he replied in the comments that, basically, you are not considering Huckabee's unique history here.

Which, as I understand it, and from other comments Bryan made in that thread, that Huckabee would get a pass if this was an isolated incident, but Huckabee has stepped in it too many times for this to just be shrugged off.

What do you think about that?

1.18.2008 6:13pm

bittern (mail):

Huckabee used the wrong words to say what he meant. Thompson took advantage of the event to make clear what his position is. I don't see any problem. It's a campaign. Anyway, it's not like anybody really follows the dead paper doctrine except in their own mind. I'm all in favor of the idea of sticking to the text, since it's our agreement, but outside of feverish imaginations, the doctrine is mostly non-determinative.

1.18.2008 6:15pm

The McGehee (mail) (www):

conservatives such as Huckabee

Speaking as a conservative, I find myself wanting to channel Inigo Montoya -- even though I'm pretty sure Prof. Volokh does know what the word means...

1.18.2008 6:32pm

another anonVCfan:

There were a lot of amendments including the first one, which gives me the right to worship or you the right to speak out and have free speech. The second amendment, which gives us the right to bear arms.

Maybe this is reading too much into it, but I'm always suspicious of politicians who think that rights are gifts. "Congress shall make no law . . . abriding the freedom of speech." "[T]he right of the people to keep and bear Arms, shall not be infringed." These commands to the government presuppose the existence of these rights.

1.18.2008 6:34pm

dearieme:

If I had been left a bequest, I'd look askance at a lawyer who referred to the living, breathing will.

1.18.2008 6:44pm

Eugene Volokh (www):

dearieme: But wills don't usually have built-in procedures for amendment. If a will did have a built-in procedure for amendment, through which 27 amendments had already been implemented, "living [and] breathing" wouldn't be quite as odd a metaphor as it would be for a typical document.

1.18.2008 6:50pm

GV:

But wills don't usually have built-in procedures for amendment.

You mean a codicil?

1.18.2008 6:55pm

Robert Lund (mail):

If Huckabee actually said "There were a lot of amendments including the first one, which gives me the right to worship or you the right to speak out and have free speech. The second amendment, which gives us the right to bear arms.", it's an indication of a deep misunderstanding of what distinguishes the US Constitution from most other royalty-derived constitutions.

If he truly understood the unique nature of our nation's laws, he would have something more along the lines of "the first one, which FORBIDS OUR GOVERNMENT from making any law which interferes with our (UNALIENABLE, GOD-GIVEN) right..."etc. It is crucial to distinguish our Constitution from others (such as the new EU tome) which presumes the authority of the state to grant the people such rights.

1.18.2008 7:00pm

Nessuno:

I really think voters are left with 3 choices on this issue and Huckabee.

First, he really believes in a "living breathing Constitution" the way that phrase is usually used--judges amending the Constitution through fiat.

Second, he's working some double-talking jive and trying to have it both ways. He's deliberately using phrases that are popular with the left but leaves the door open for to deny that he means it.

Or third, he's utterly clueless about what that phrase means, it's loaded connotations, and the various arguments about Constitutional interpretation.

Given it's Mike Huckabee we're talking about here, I'm leaning toward option three, but none of these is very reassuring.

1.18.2008 7:04pm

gregh (mail):

This atempt to distort clear statments by reference to "secret code words" speaks far worse of Thompson than Huckabee. I hate it when people tell me that I 'm speaking in secret, racist or whatever, code.
By the way, how's Thompson going to keep McCain-Feingold, which he supports, the law of the land, while nominating only constructionist judges?

1.18.2008 7:09pm

KeithK (mail):

Robert and another anonVCfan: I'm with you. I get very annoyed when people say and/or think that the Constitution gives us these rights. It's a fundamental misunderstanding of our Constitution. When you accept that these rights are only held by the grace of the government you implicitly are admitting that the government has the right to take them away.

1.18.2008 7:29pm

GV: I took dearieme to be referring to a situation where the testator is dead, and thus no longer writing codicils. (That's the situation where someone would usually be said to have been "left a bequest.") The only such will that's analogous to a Constitution would be a will that would expressly provide for amendments by someone else after the testator's death -- not impossible, but I think not common, either.

1.18.2008 7:36pm

John A. Fleming (mail):

I think Thompson's statement would have been a lot more effective if, instead of Lawrence, he talked about Kelo and its progenitor Berman v Parker, where the Supremes equated the plain language "public use" with "public purpose", so that now public use means anything the government says it is.

1.18.2008 7:58pm

Brett Bellmore:

"By the way, how's Thompson going to keep McCain-Feingold, which he supports, the law of the land, while nominating only constructionist judges?"

That's a problem faced, I've noticed, by most actual politicians who talk about wanting "strict constructionists" on the bench. I think it comes from some kind of psychological defense mechanism preventing them from noticing that anything THEY want is unconstitutional.

Or, of course, they could just be hypocrites.

1.18.2008 8:18pm

Ray Eckhart (mail):

Echoing John Fleming, I think Randy Barnett makes clear the difference between the Roe and Lawrence decisions.

JorgXMcKie (mail):

I'm a little more concerned about the sentence: "That's why African-Americans are considered people, because we amended the constitution." Is he alluding to the '3/5 of a person rule for apportionment? Or is he trying to claim that majorities of citizens outside the South believed African-Americans weren't people, or what? That's a pretty stunning statement on the face of it.

1.18.2008 9:50pm

M. Simon (mail) (www):

Eugene,

I'm a Fred head myself. However, Fred says that Lawrence was wrongly decided.

My attitude is that a man's home is his castle and the government has no business being involved in the sex play of adults. Neither State nor Federal.

What do you think?

1.18.2008 10:13pm

LM (mail):

In context, it couldn't be clearer that Huckabee intended exactly the opposite of what Hot Air accused him of. But that should surprise no one, since on Malkin's sites "Huckabee" carries almost as much pejorative connotation as "living, breathing Constitution."

1.18.2008 10:50pm

Elliot123 (mail):

We should probably accept that the scriptures won't change, and there is no reason to expect them to change. Who is trying to change them?

But we should also accept that men's interpretations of them will change. Nothing strange about that either. Nobody is stoned today for picking up sticks on the Sabbath.

And we should also accept that it doesn't matter if our constitution agrees with scripture or any man's interpretation of scrpture. If they disagree, so what?

1.18.2008 11:13pm

Sean M:

What's interesting about the three-fifths clause is that it's often interpreted as different than what it was meant to be.

Based on my understanding of the drafting, the clause was meant to strike a balance between Southern states that wanted people enslaved counting as full people in the census (so as to get more representation in the House) and Northerns that wanted to limit Southern slave-owning representation by not counting slaves at all.

So if anything, it was the Northerners that wanted slaves "not counted as people" and the South that wanted them "treated as people." But the debate was about apportionment, not who is a person in a metaphysical sense.

(I'm not saying the clause was right, obviously. But it's often used rhetorically for something it is and was not).

1.19.2008 12:23am

Mr. Liberal:

Elliot123,

Nobody is stoned today for picking up sticks on the Sabbath.

And nor would you be under the original meaning of the Bible including the New Testament.

1.19.2008 1:30am

Grassboots (mail):

And we should also accept that it doesn't matter if our constitution agrees with scripture.... If they disagree, so what?

Nothing matters more. A Christian is committed to the notion that God's word is his rule of life. No human document will ever be so. Therefore an oath to uphold the Constitution will always be limited to its interpretation and a Christian would be bound to reject it if it required allegiance above his allegiance to unchanging Scripture.

In other words, if the document was amended after you tool an oath to uphold it, you would not bound by it if either your conscience or Scripture were in contradiction to it.

1.19.2008 2:58am

Cornellian (mail):

Huckabee says the Constitution is a “living, breathing document” ...

I wonder what the Constitution would be like if it were only living, but not breathing, or breathing but not living.

1.19.2008 3:50am

EV: I had assumed that "living, breathing" referred not to the possibility of amendments, but to the custom of the Supreme Court decreeing that the Constitution means whatever its whims dictate.

1.19.2008 4:04am

DeezRightWingNutz:

Maybe he's speaking in a practical sense, as in, in countries without analogues of the first and second amendments, people can't speak freely or own firearms. But often, the way he phrased it -- "...gives us the right..." -- belies a broader framework for how one views rights. The Constitution doesn't "give us" our rights. We have them already by virtue of being born free. The Constitution secures them and protects them from government infringement.

1.19.2008 8:14am

Sorry, usually I read the comments first, but since I was somewhat off topic, I figured no one had made the same comment.

1.19.2008 8:16am

Joshua:

Here's one thing Huckabee never considered. In fact it's the elephant in the room when it comes to debates over constitutional interpretation and amendment.

Article V of the Constitution offers provisions for constitutional amendment. For obvious reasons, the bar for enacting an amendment is very high. But this creates its own set of problems, though, especially with a nation as politically and culturally fragmented (and only getting more so) as the United States. We are fast approaching the point (if we haven't arrived there already) where the national polity is inherently no longer capable of reaching the level of consensus required to enact any constitutional amendment. At that point, Article V becomes window-dressing, and the Constitution becomes a de facto "dead" document, more like the scriptures or shari'a than like its former self, minus the claim of divine authorship of course.

While I'm sure some folks here would welcome this development, remember that a constitution, like any other set of man-made rules, that cannot be practically changed will eventually become obsolete and backward. If judicial fiat and a "living document" are not acceptable remedies for this, then what is?

1.19.2008 11:25am

wuzzagrunt (mail):

Joshua wrote:

We are fast approaching the point (if we haven't arrived there already) where the national polity is inherently no longer capable of reaching the level of consensus required to enact any constitutional amendment. At that point, Article V becomes window-dressing, and the Constitution becomes a de facto "dead" document, more like the scriptures or shari'a than like its former self, minus the claim of divine authorship of course.

While I'm sure some folks here would welcome this development, remember that a constitution, like any other set of man-made rules, that cannot be practically changed will eventually become obsolete and backward. If judicial fiat and a "living document" are not acceptable remedies for this, then what is?

That's ranks right alongside "the people are too ignorant to know what's good for them" in the quiver of compelling arguments in favor of the constitutionally prescribed amendment process. Those who believe a change is necessary have the burden of selling the idea to those affected by it. If no consensus can be reached, who gets to decide what is best for the nation? A "blue ribbon panel of experts", perhaps? Figuring out where that will lead ain't hard at all.

1.19.2008 12:56pm

"And nor would you be under the original meaning of the Bible including the New Testament."

The stonong for sticks predated the NT by many years. And original meaning of the bible is a function of different men's interpretations. Whose meaning do you reference? The guy who got caught with the sticks, or some modern professor of theology?

1.19.2008 1:15pm

"Therefore an oath to uphold the Constitution will always be limited to its interpretation and a Christian would be bound to reject it if it required allegiance above his allegiance to unchanging Scripture."

That sounds more like a problem with the credibility of the Christian than with the Constitution. I suggest it's a bit unfair to smear Christians by telling us we can't rely on their oath.

1.19.2008 1:18pm

Bowman:

Based on my understanding of the drafting, the clause was meant to strike a balance between Southern states that wanted people enslaved counting as full people in the census (so as to get more representation in the House) and Northerns that wanted to limit Southern slave-owning representation by not counting slaves at all.

So if anything, it was the Northerners that wanted slaves "not counted as people" and the South that wanted them "treated as people." But the debate was about apportionment, not who is a person in a metaphysical sense.

(I'm not saying the clause was right, obviously. But it's often used rhetorically for something it is and was not).

Your understanding is correct so of course the clause was the right thing to do. The anti-slavery activists were the ones who insisted it be in the constitution.

At issue was whether the slave states would be able to count their slaves as citizens for the purposes of how many representatives they'd get in the House. In essence, without this clause, the slaveowners would have the defacto power of voting for their slaves.

The anti-slavery activists wanted it to be 0/5ths instead of 3/5ths.

If the modern day civil rights dunderheads had their way, it would have been 5/5ths. That way with more representatives in the House, the slave states wouldn't have struggled under the tariff burden on manufactured goods imposed by the North. They would have won all the legislative battles to expand slavery into new states and territories.

Instead of having a civil war and freeing the slaves, everything would have continued to be nice, peaceful, and slavery could have flourished.

1.19.2008 1:53pm

If the modern day civil rights dunderheads had their way, it would have been 5/5ths.

I won't ask you to prove it, because obviously no such proof exists. But at least let us in on the reasoning that led you to such a nonsensical notion.

1.19.2008 2:30pm

martinned (mail) (www):

L.S.,

@wuzzagrunt: Maybe the amendment process itself should be amended?

1.19.2008 2:38pm

TDPerkins (mail):

By the way, how's Thompson going to keep McCain-Feingold, which he supports, the law of the land, while nominating only constructionist judges?

He's repudiated McCain-Feingold, saying he made a mistake.

1.19.2008 3:28pm

wuzzagrunt:

Those who believe a change is necessary have the burden of selling the idea to those affected by it. If no consensus can be reached, who gets to decide what is best for the nation? A "blue ribbon panel of experts", perhaps? Figuring out where that will lead ain't hard at all.

Reaching a two-thirds-of-Congress/three-fourths-of-the-states consensus that a change is necessary is not enough to bring about an amendment; we also require that same consensus on specifically what that change should be (i.e. the specific language of the amendment, what it does and doesn't cover, etc.). In the political/cultural environment we have now, and will for the foreseeable future, the former is exceedingly difficult; the latter is nigh on impossible.

So, what do our descendants do 100-200 years from now when they're stuck with a Constitution that they recognize has lapsed into obsolescence, but can't come to a two-thirds-of-Congress/three-fourths-of-the-states consensus on exactly how to bring it into the 22nd or 23rd century? How about 500 years from now? A thousand? OK, I realize that's a bit far-fetched - surely someone would have long since revolted, overthrown the government, abolished the Constitution and started from scratch if things really did get that far out of hand. But that's not the outcome I would prefer (nor, I assume, would you or anyone else reading this).

My point, as I alluded to in my first post, is this: All else being equal, a system of law that allows for amendment but in practice is effectively amendment-proof is really no different from a system of law with no amendment provisions at all. Unless I'm missing something, that leaves either creative judicial interpretation or violent revolution as the only remaining vehicles for change.

martinned:

@wuzzagrunt: Maybe the amendment process itself should be amended?

Ah, but that would still have to pass the current amendment process. Again, good luck with that.

1.19.2008 4:54pm

L.S.,

@Joshua: I intended to (succinctly) express my agreement with your remarks. If you don't think it is possible to use the current amendment procedure to create a new and less challenging one, what do you propose?

Obviously, there are many terms and clauses in the Constitution which were meant to be interpreted by the judiciary in a Common Law fashion ("cruel and unusual" being the classic example), but I'm not sure I'd advocate that approach for the entire document.

1.19.2008 5:17pm

Sedgequill:

It's possible to get too hung up the organism metaphor. For some who find the “living, breathing” figurative terms to be code and quote them in denouncing those who favor different constitutional interpretations, it would be a disappointment if the metaphor were to fall out of usage. If innocuousness may be allowed, many people simply want a way to convey that the Constitution is not a dead and petrified document that can only be mined for literal dictums not subject to interpretation.

The issue of the evolution of organisms continues to be controversial, and “living, breathing” applied to the Constitution is taken by some to connote evolution of the Constitution. Even to some of us who find many of the "judicial activism” charges to be unfounded or expediently partisan, the image of an evolving Constitution is not a fitting one. The functional Constitution, the law of the land, does, however, change often based on legal decisions.

If the organism metaphor is inadequate, what should replace it? I don't know that it needs a replacement. We use figurative language in civic matters for convenience and to make explanation easier, don't we? Maybe we could get by with a little less convenience and without so many dumbed-down explanations.

1.19.2008 7:15pm

"He's repudiated McCain-Feingold, saying he made a mistake."

That's great news, but I'm afraid most folks don't know about it. Can you give us more details? Cite? Link? When? Where? Anything? Has he introduced legislation to fix his mistake? repeal?

On the other hand, maybe I'm the only one uninformed. if so, could anyone set me straight?

1.19.2008 7:57pm

Damn. I reread that and see it isn't McCain who did the repudiating. Totally wasted snark. Strike it all.

1.19.2008 8:00pm

Postglobalism (www):

Mike Huckabee Leads Election By Losing Weight

WASHINGTON, DC (N3) - The Pew Research Center released a survey of the American presidential election with a startling conclusion -- that Mike Huckabee will take the lead not because of his political views, but because Americans can identify with his struggle for weight loss.

Anti-globalism

I wish we had better candidates than Clinton, Obama or Huckabee. Ron Paul is an uncommonly honest and capable politician, but he seems to be a subject of media bias.

Democracy is the way of popularity and attracting votes with money; unless the industry and lobbies love you, there's no chance of winning the election.

1.20.2008 4:24am

I would argue that the passage of the 18th Amendment is evidence that the process is too easy. If the amendment process were easier, the next major terrorist attack could see Islam excluded from the free exercise clause of the 1st. The tortuous nature of the process makes it possible (doesn't guarantee) for cooler heads to prevail.

Be careful what you wish for.

1.20.2008 11:08am

DiverDan (mail):

As I've pointed out on this blog before, the whole concept of a "living, breathing Constitution" is just a metaphor, which, like a great many metaphors, has just as much power to mislead as it does to enlighten. By focusing exclusively on whether the Constitution can adapt to changing conditions (of course it can - it has done so 27 times by the will of the people, much more if you count judicial rewrites), it obscures the much more important questions of: (1) who has the legitimate authority to make changes ("We the People", through our elected representatives, under Article V), and please note that I distinguish "legitimate authority" from "power"; while the Supreme Court certainly has the "power" to rewrite the Constitution, I deny that it has the authority to do so; and (2) how those amendments are to be agreed upon by a strong concensus of the American People (yes, Article V lays out the groundwork for the process, but it still leaves open questions, such as whether Congress can place time limits on state ratification, like it did with the ERA in 1972, or extend that time limit after the fact, like it did in 1979).

1.20.2008 11:27am

markm (mail):

JorgXMcKie (mail):
I'm a little more concerned about the sentence: "That's why African-Americans are considered people, because we amended the constitution." Is he alluding to the '3/5 of a person rule for apportionment?

The 3/5 compromise wasn't about whether blacks were "persons", but about whether congressional districts were allocated to slaves, who obviously weren't going to get to vote for those "representatives". It was the Dred Scott decision that said that even free blacks weren't persons, and the 14th Amendment that overturned that.

Not that I think that Huckabee understands this, or much else about American history...

1.20.2008 3:08pm

Scott Dodson (mail):

In response to a couple of comments on the metaphor: "Living, breathing" is not a particularly accurate metaphor, regardless of one's predelictions for or against a "living Constitution." Living things inevitably die, after all, and I'm pretty sure none of us wants that. But even more provocatively, the idea that the Constitution "evolves" (a coherent manifestation of the meta-metaphor) through judicial interpretation or even constitutional amendment is not an accurate metaphor for what we typically understand "evolution" (at least in the biological sense) to mean. To the contrary, the directed, purposeful, forward-looking, and goal-oriented "evolution" of the Constitution is far more akin to Intelligent Design than Darwinism! So, maybe the Huckster was speaking consistently after all...

1.21.2008 2:44pm

Clayton E. Cramer (mail) (www):

I'm a Fred head myself. However, Fred says that Lawrence was wrongly decided.

My attitude is that a man's home is his castle and the government has no business being involved in the sex play of adults. Neither State nor Federal.

What do you think?

I agree that you that this is not properly the government's business. But that's not the same as saying that the Constitution prohibits the states from passing such laws. Thompson is right: Lawrence was wrongly decided.

Not everything that is Constitutional is a good idea.

Not everything that is a good idea is Constitutional.

1.21.2008 4:31pm

The 3/5 compromise wasn't about whether blacks were "persons", but about whether congressional districts were allocated to slaves, who obviously weren't going to get to vote for those "representatives". It was the Dred Scott decision that said that even free blacks weren't persons, and the 14th Amendment that overturned that.

Uh, no, Dred Scott decided that free blacks weren't citizens. (Point 4 of the syllabus.) I don't know that any court ever ruled that blacks (even slaves) weren't persons--and there are a few decisions that recognized that even slaves were persons, with a few rights that were at least theoretically protected by the law.

And yes, the 3/5ths rule was a compromise between Northerners (who didn't want slaves counted at all, but wanted them taxed as property), and Southerners (who wanted slaves counted the same as all other human inhabitants, but didn't want them taxed as property). True, slaves weren't voting for members of the House, but neither were women, and they were counted for that purpose.

1.21.2008 4:36pm

Toby:

There is no conservative belief that Huckabee has other than being anti-abortion and deist. If the Democrat party were not pro-abortion and anti-deist, then he would find his natural home as a moderate democrat. Huckabee's candidacy is the natural result of two pacts with the devil: one by the Democrats with radical feminism, that brooks no deviance of any kind from abortion as sacrament, and one by the republicans with dixiecrats to get elected.

If Huckabee get's elected, I am not sure which of the two will rue the contract more...

1.21.2008 10:14pm

Clayton: IIRC, Dred Scott ruled that Scott didn't have the right to sue in the first place. That's not a right reserved to citizens. It discussed such allegedly horrible possibilities as blacks claiming the right to keep and bear arms - that's a "right of the people", not a right of citizens.

1.22.2008 6:46am