Tom W. Bell, writing at Agoraphilia, asks that question. His answer (in relevant part):
Just because the Founders ratified a Constitution as they understood it does not mean that we ratify one with the same meaning. We ratify our Constitution, as we understand it, or not. We cannot justly be bound by others’ choices….
The choice boils down to this: If you rely solely on original meaning, you will ordain and establish a Constitution that was. If you want to ordain and establish the Constitution for we, the living People, you have [to] read it through living eyes.
This is straight from the Lysander Spooner school of constitutional theory, which holds that the Constitution never was and never will be binding because it isn’t a voluntary contract entered into by those presumed to be bound by it. That view is valid only to the extent that the Constitution is viewed only as a contract (which it was), but not as law (which it was and is).
The particular error in Bell’s assessment is that he overlooks the Constitution’s continuity. It was binding on the Americans of 1790, by which time all of the original States has ratified it. As a matter of law, all Americans living at that time had the right to rely on the extant meaning of the Constitution. That meaning was therefore binding throughout their lifetimes, not only on them but, of necessity, on every American who was born during those lifetimes. Accordingly, the same meaning must have been binding on every American subsequently born, up to the present. And it must be binding on every American yet to be born.
Otherwise, the Constitution’s meaning — as law — changes constantly. But the meaning of law is not supposed to change constantly, without deliberate, overt amendment through prescribed political processes. If it is allowed to change constantly, without due process, it is whim, not law.
A counter-argument is that law is whatever it is at a given time, as revealed in its current interpretation and enforcement (or lack thereof). That is a “realistic” description of law, but not one that lends itself to the preservation of trust in written law as a set of rules under which a sizable, disparate populace may coexist in peaceful cooperation. In fact, that kind of “realism” has fostered today’s intrusive, “living,” Constitution that (I strongly suspect) Bell rightly abhors.
A person of Bell’s (presumably) anarchistic persuasion would welcome the prospect of the abasement of written law, for it would open the way for the voluntary institutions of civil society to reclaim their rightful place in the development and enforcement of the rules of coexistence. I, too, would welcome the abasement of written law, but for two reasons:
- The voluntary institutions of civil society have been driven into impotence by heavy-handed dominance of government over the full range of human existence, from birth to death and in between.
- As government has grown dominant, the United States and the individual States have outgrown (in size and heterogeneity) the possibility of self-governance through mutual consent.
What is needed, now, is not the repudiation of the Constitution’s original meaning but, rather, its restoration to primacy. Only in that direction lies hope for a relatively limited government, under which the voluntary institutions of civil society could enjoy a rebirth of legitimacy and influence.