Though I disagreed with the late Justice Scalia about a variety of things, I have always liked his quip that he didn’t believe in a “living” Constitution, but in a dead one.
Let’s tweak that a little. What people mean by a living Constitution is a Constitution with no stable meanings. If you don’t like what it seems to mean, you can say it means something else. Its meanings are entirely fluid.
But a living Constitution is dead. Only a dead Constitution can live, in the only sense in which it ought to.
What does this mean? Let us remember that the reason for having a Constitution isn’t to chain us to the notions of bygone generations. Rather it is to prevent rulers from becoming arbitrary, by making it more difficult for them to do certain things they might otherwise do. If they can make the Constitution mean whatever they want it to, then it can’t do that.
So how is a living Constitution dead? It is dead in the sense that a document with fluid meanings can no longer function as a Constitution; it cannot keep the rulers from doing whatever they want to.
And how can a dead Constitution live? It can live in the sense that because its meanings are stable, it can still function as a Constitution; it can keep the rulers from doing whatever they want to.
Thus to have a “living” Constitution in the sense of those who use this expression is tantamount to not having a Constitution at all.
A Constitution is not meant to be a fetter. Although, for good reason, it cannot be changed as easily as ordinary law can be changed, it can be amended if we are willing to go to the trouble to build not a fleeting majority, but a strong and persistent consensus. If you’re not happy with your Constitution, go ahead -- try to get it amended. But don’t treat it as meaning what it doesn’t.