Sunday, January 19, 2014

An amendable Constitution is the opposite counterpart to a living constitution, not dead

IMHO, One of the worst unintended consequences of the mischaracterization of the US Constitution as 'living' is that it urges a response to what is the readily-available/exact opposite.

The problem is, the United States Constitution is not a dead constitution. To illustrate, I would like to make a list of dead constitutions for you in the hopes that it will help set up what may be a proper comparison.

The Constitution of Rome, is a dead constitution.

The Solonian Constitution, is a dead constitution.

The Constitution of Prussia, is a dead constitution. (All three of them)

The Constitution of Burma, is a dead constitution.(First two.)

The Constitution of The German Empire as well as the Weimar Constitution, are both dead constitutions.

The point being, they are dead because they are obviously dead. Nobody pays attention to them, nobody lives under them. They are historical show pieces at this point, nothing more.

Yesterday I put a video lecture online highlighting what I believe to be a very useful observation - that the British Constitution is a living and breathing document. This observation came as part of the things I post, but it came to a head for a summer paper that I wrote for my last history class. I wrote about that paper in my prior here so I don't need to re-hash it. But two paragraphs from that paper I would really like to lift and put on display.

If the American Constitution is not living and breathing, then what is it? Well first, just because it is not “living” does not mean that it is “dead”. If you want to see an example of a dead constitution, look to Rome. While Rome's “constitution” was uncodified similarly to what Britain has, another example of a dead constitution would be the Kingdom of Prussia. Constitutions are legal documents, they do not live and breathe in the way that Wilson tried to describe, but considering how Wilson laid out his concept of a living document, we can comfortably say that Britain's model fits the mold as if that is what he was describing all along.

While constitutions do not “live” along these lines, if the societies that they are tied to die or become eclipsed, such as Rome and Prussia, then the documents are as dead as the societies that used to be subject to them. If the American Constitution were ever to die, then that means that the American People will have repealed and replaced her and reverted back to a more monarchical form. To put this simply, the opposite of a living and breathing document is an amendable document; not living, not dead; amendable. Our Constitution with it's amendment process and high bars is in and of itself proof that it's not a living and breathing document, it's an amendable document.

With living beings, the opposite of "living" is "dead".

With legal documents, the opposite of "living" is "amendable".

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