22 February 2005

The Logic of a "living, breathing document"

We keep hearing it said that our Constitution is a living breathing document. Usually, those who spout this garbage do so as if the point is not even arguable. Recently, a caller "reminded" Laura Ingraham that "our Constitution is a living, breathing document."

The name of this blog is "philologous." It is an adjective, referring to me as one who is loving of learning, literally a lover of words. I do love words. I love reading them, and writing them. So I spend a great deal of time with documents of various sorts. By logical extension, my love for learning makes me a lover of logic and of analysis. Let us look briefly at the phrase, "living, breathing document". We ought to be able to recognize this assemblage of words--to be quite blunt--as excrement, feces, crap. (As one who is philologous I believe in using the best possible word. Now, no other words, for me, intimate just precisely the sort of ooze that "living, breathing document" really is.)

My love for words, means, among other things, that I believe that words mean things. And while, as in any language, a single word can have a variety of meanings, at base, it ought to function as what we might call a term of art. That is, a word used in a specific domain (i.e., subject) has, with reference to objects in that domain, a single meaning. That being the case, since, in discussing the constitution, we are discussing a form of government the terms of which are inscribed on paper, the phrase, "living, breathing" has no meaning. The exegesis of a document is not physiology. The constitution is not a living system; it is a piece of the law, the fundamental law of the land. There will be no putting a stethoscope to the constitution to check its health. The constitution does not inhale; it does not exhale. It has no circulatory system.

Of course, one may say that I am being too literal, too simplistic. All I want to say in response to that is that if the phrase, "living, breathing" is not being used literally, then those who use it are engaging in poetry; and the constitution is not poetry. It is law. Even so, as a term of art, one might say, the phrase simply means that the meaning of the document, like all other things, must change in order to continue to be relevant. And this is the problem with the logic of the position: no evidence can be offered to support the proposition. The constitution, while claiming for itself the status of law of the land, makes no claim to be a "living, breathing" document. So, in making the argument, one has left the constitution and is not arguing a point of constitutional law, but of literary criticism. Furthermore, the logic of this position requires us to believe that the document can only be relevant if it contains somewhere within it (e.g. the "penumbras of the bill of rights") the solution to every modern problem, if only we would allow this "living, breathing" document to speak, like the oracle at Delphi, through the black-robed prophets who sit on the court. If you reject this assumption, as I do, then the constitution is relevant because it provides for a government which can offer solutions to modern problems.

If the Constitution really is a "living, breathing" document then there is no constitution. If the meaning of the text just changes over time, then the text really doesn't say anything. Consider the right to an abortion. Today, the "living, breathing" document gives us this right. But this same right could be gone tomorrow. (And it will be, says the left, if Goerge Bush gets his nominees on the court.) And right there, they reveal that they do not believe this "living breathing" document excrement either. Right there, they reveal that they really do understand that it is not the document that is living and breathing, but the justices who "interpret" (we should really say, translate) the oracle. But I digress.)

This same right could be gone tomorrow because the "living, breathing" document, whose meaning changes over time, could (it is at least hypothetically possible, is it not?) change back to a document that no longer protects or recognizes that right. (Is it not the least bit interesting that this "living, breathing" document is a left-liberal, and not a right-conservative, document?) And so it is with all of our rights. This "living, breathing" document could change into a document that no longer gives us the rights to freedom of speech and peaceful assembly, or of the press, or religion. Why this living, breathing document could once again give us the right to own slaves. It could give law enforcement officers the right to interrogate suspects without "Mirandizing" them. It could take away our right to trial by jury. This "living, breathing" document could become as arbitrary a ruler as the worst tyrant--all the while hiding from simpletons the fact that the real tyrants are the black-robed pretended prophets who claim to be translating for us the will of this living, breathing, riddle speaking oracle.

Oh, wise, living, breathing, paper oracle: What shall I have for lunch today? I await the court's answer.

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James Frank SolĂ­s
Former soldier (USA). Graduate-level educated. Married 26 years. Texas ex-patriate. Ruling elder in the Presbyterian Church in America.
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