Speaking at the annual conference of the 9th U.S. Circuit Court of Appeals, Supreme Court Justice Anthony Kennedy declared the reason he serves as the Supreme Court’s “swing” vote. He considers the U.S. Constitution “a flawed document” susceptible to interpretation.
The framers, Kennedy said, “were wise enough to know that they could not foresee the injustices” of the future, “so they used general language.” He believes the framers wanted principles that could be reinterpreted by justices of the future.
Kennedy needs to study up on his history, for the framers believed quite differently.
James Wilson, signer of the Declaration of Independence, two-time member of the Continental Congress and one of the first six original Supreme Court Justices, served on the Committee of Detail, which produced the first draft of the Constitution. He said, “The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.”
That seems to leave little wiggle room for the argument that the Constitution is a “living document.”
James Madison warned about the results of construing the Constitution as a “living document” when he wrote to Henry Lee: “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense. And that the language of our Constitution is already undergoing interpretations unknown to its founder, will I believe appear to all unbiassed Enquirers into the history of its origin and adoption.”
Another Constitutional signatory and later Supreme Court justice, William Paterson, wrote: “What is a Constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental law are established. The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it.”
The “authority that made it” is not the Supreme Court or Kennedy.
And though not involved in the drafting of the Constitution, Thomas Jefferson clearly understood the danger inherent in loose interpretations of its meaning. “On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed.”