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Death of the living Constitution

The old Constitution, lifeless, irrelevant and inconvenient to its progressive critics, is having a good run of late at the expense of the living Constitution. 

Attorney General Eric Holder in contempt for withholding information on his Mexican gunrunning operation, a de facto act of war on our southern neighbor, with Fast and Furious itself a deliberate act of war against the Second Amendment. 

ObamaCare verging on voiding. 

The Founders would be pleased. 

They built the Constitution as a bulwark against Man’s frailties, agreeing with Machiavelli that both leaders and the people are wicked and with Montesquieu that the defense against wickedness in government is a separation of powers, with each imperfect branch set against its rival in a base balance. 

The Constitution’s purpose is to provide form for Jefferson’s ideal: that the aim of government on this fallen orb is liberty—to allow self-evident truths to be achieved in practice with government’s object to be the securing of its citizens’ Life, Liberty and pursuit of Happiness. 

Lincoln believed, and a great war was fought, over whether that promise of liberty, rightly understood, extended to all Americans. It did and it does. 

A few decades later, some very smart academics with some very advanced political science theories from Germany considered the American Constitution and found it lacking, archaic.

Hegelianism devalued the Founders as mere reflections of their time, historically conditioned by obsolete thought with little of relevance to modern conditions. The Constitution must be “living,” unfixed and formless, were it to have relevance to industrial Man. 

Franklin Roosevelt said the Old Liberty was insufficient, calling for a “Second Bill of Rights” in his 1944 State of the Union. For Roosevelt and the Progressives, mere “political rights” were “inadequate to assure us equality in the pursuit of happiness.” Government needed to be the provider of happiness to ensure it. 

Former Speaker Pelosi echoes FDR in defending her co-creation of ObamaCare, saying that government-run health care for all is “about life, liberty and the pursuit of happiness for the American people,” that it “unlocks” them from the fear of having to work to keep their health insurance. 

A majority of nine Justices may be about to rule otherwise. If the Court's majority does so, it will show that Madison’s work, painstakingly built from the lessons of history, lives—not as Wilson’s protean piece of paper, a Hegelian shapeshifter—but as a living testament to the Founder’s wisdom. 

It looks like we may still, in fact, have a Republic—if we can keep it.

Chuck DeVore is a Senior Fellow for Fiscal Policy at the Texas Public Policy Foundation. He represented the 70th District of the California State Assembly, which included portions of Orange County, between 2004 and 2010.