Our Living Constitution

In my last post, I listed all the changes I’ve seen take place in public policy in the early months of the Obama administration. One of those was the massive debt he has added to our posterity, a fact captured nicely in this cartoon:

Notice the cargo on the good ship “Big Government” in the picture: all the bailouts of banks, ownership of GM and Chrysler, regulation of Wall Street, healthcare. The question very few are asking is, “By what authority is the government doing all of this?”

Has anyone out there read the Constitution lately? When I teach American history, starting particularly with the New Deal in the 1930s, as I describe all the new programs that started, I continually comment to the students, “Now where is that found in the Constitution? Where, specifically, does it say that the government can provide insurance for bank deposits? Where are we told that there is authority to regulate agriculture, to pay farmers for not farming, to slaughter pigs to drive up the price of pork in the marketplace? Again, which section of our Constitution allows the federal government to set up and run a power plant and try to nationalize all power plants in the country?”

The answer I always have to give is: nowhere.

You see, we now have what is called a “living Constitution.” If it doesn’t give the authority for a government action, all we have to do is find a judge somewhere who thinks the government should have that authority and he/she will grant it. By means of the judicial magic wand, a new “power” has been created.

What began with FDR’s New Deal received steroid shots in the 1960s under Lyndon Johnson’s Great Society program. Now, with the help of a financial crisis, President Obama has taken advantage of Americans’ fears to make the Great Society seem like a conservative program compared to his plans.

The political progressives won the debate over the Constitution by using the term “living.” After all, who wants a “dead” Constitution? That was pure semantics. Yet if you can use the right words, you can convince people of your position. The option was not between living and dead, but they succeeded in framing the argument their way.

Their living Constitution may yet lead to the death of the country that used to lead the world in respect for the rule of law.