One of the most common arguments used when it is realized that a person's preferred policy isn't authorized by the Constitution is to argue that it is a "Living Constitution", open to changing with the winds of time. "Constitutional Originalism", they say, is "extremist". As if believing the founders meant what they said and intended it to be law is some idea out of a fantasy novel.
While some pundits in the media and the intellectuals that roam our college campuses have come up with complex explanations that they feel justify this view, one must only ask a few simple questions to call their claims into question.
If the framers really intended the Constitution to be a living document, one in which the words could be construed to mean different things as time passed, why did they include a way to amend it? If the document is living and the meaning of the words so easily changed by judicial activism, what is the point of going through a process to amend the document at all?
The drafters of the Constitution were dedicated students of history, they understood full well where they were coming from, and that political realities would change in the future. That is why they included a way for us to change it over 200 years later if new realities indeed made it necessary.
Of course, the process is not a simple one. Amending the Constitution takes time, and ultimately a three-fourths majority of the states have to agree to the change. No easy process to be sure. The adherents of the Living Constitution argue that this process is too arduous. However, it was made so difficult deliberately. The framers understood the dangers that come with centralized accumulation of power. The Constitution was put in place to protect us from that. Any change must be carefully considered, and ultimately widely agreed upon, to assure no easy growth of tyranny. Arduous though it may be, it has been done 17 times since the Bill of Rights was added as the first 10 amendments. It can be done.
Why, if the framers intended it to be a living document, did they painstakingly debate every word of it? Why did they enumerate powers? Why not just have a simple system where the legislature passes laws without restriction, and the president can sign or veto it? Or better yet in the eyes of some, why not just have a legislature that merely makes suggestions to the executive, with the executive free to take that advice or not? Why even have a Supreme Court? There need not be anyone to check the power of government if there was never any intention to strictly follow the law!
No, none of this matters to the adherents of the Living Constitution. We must all succumb to their version of "common sense" reform and change.
If their ideas are indeed such common sense, why is it they cannot gather enough support to amend the constitution?
Indeed, their lack of ability to persuade us shows that their ideas aren't common sense at all, but are still open to debate. The original intent of the Constitution allows for change of common sense, the Living Constitution crowd just doesn't have much of it.