Lincoln’s “Living Constitution”

Much of the political tension in the U.S.A. today stems from the argument over the “living Constitution” – that is the nice way of saying “people adding stuff to the Constitution that was never there before, but obviously is there now”.

The Constitution is written in a way that quite clearly says that if you want to change, amend, or perfect it, you have to follow the amendment process. But that amendment process is tough. It’s also fallen out of favor now that an easier way to fix the broken document has been discovered.

Some people blame Roe v. Wade – where the Supreme Court of the United States found that a woman has a Constitutionally protected right to abortion. That ruling infuriates anti-abortion* advocates – not just because it’s pro-abortion*, but because that ruling just makes it so obvious that the SCOTUS is just making stuff up.

Other people blame Wickard_v._Filburn, where the court abused the Constitution’s commerce clause to justify a law forcing a wheat farmer to destroy his own crop. The logic here is even crazier than Roe – the commerce clause gives Congress the power to regulate foreign trade, interstate commerce, and trade with Indian nations. The SCOTUS thus classed a wheat farmer growing wheat on his own farm – for his own consumption – as “interstate trade”, on the grounds that if everyone did it, it would affect crop prices; therefore, it could have a significant effect on interstate commerce; therefore, Congress can regulate it on the grounds that it is “interstate commerce”.

This is just crazytalk, but the political situation being what it was in 1942, it went through.

The moment that I have always heard as starting the whole mess goes all the way back to 1905, in the case of Swift & Company v. U.S. where SCOTUS first violated the integrity of the commerce clause, by ruling that Congress could regulate local businesses if the reasons were good enough that the ends justify the means if certain conditions were met:

the Supreme Court ruled that Congress could constitutionally prohibit local business practices as a means to regulate interstate commerce because those practices, when combined together, were within “the stream of commerce” between the states.

Notice the way the history of the commerce clause is like a history of the justification of corrupting the Constitution. The latest case, of course, was the “Obamacare” case, when SCOTUS asked Obama’s team to explain, if they had the power to force people to buy a commercial product (health insurance) against their will, was there any power the government would not have the right to claim, under such an interpretation of the commerce clause?

Of course, in all the cases, the violation of integrity is always warranted because it’s for a Really Really Good Cause.

But one thing that isn’t normally included in the history of the “living Constitution” is that moment in Lincoln’s first inaugural address where he argues that the Constitution must have intended its own “perpetuity”, and therefore whatever Lincoln assumes to be necessary to the “perpetuity” of the nation must be Constitutionally and ethically appropriate.

This seems to be doing approximately the same thing – half a century before Swift.

Lincoln’s argument seems to have been (if I am reading it right) that the South seceding from the Union would threaten the health of the nation, therefore it is not legal because no government has to tolerate that which threatens its health (Imagine if that were a rule Presidents today got to use – “in my opinion, that threatens the health of the nation, ergo the Constitution can’t have meant you to have the liberty to do that.”):

…If the United States be not a government proper, but an association of States in the nature of contract merely, can it, as a contract, be peaceably unmade by less than all the parties who made it? One party to a contract may violate it—break it, so to speak—but does it not require all to lawfully rescind it?

This also seems to me to include a bit of circular reasoning (although opponents of no-fault divorce should take note of Lincoln’s argument), in that he seems to be relying on the apparently self-evident (to him) nature of the idea that “a union cannot be lawfully broken unless all parties agree to rescind it” to prove the point that breaking the union is unlawful because all the parties are not agreeing to rescind it.

But again, if I understand the question right, the states entered the Union with the understanding that they could leave. Lincoln overcomes that by inserting his own interpretation of what “a more perfect Union” ought to mean (a highly subjective interpretation, and not likely to be what the original writers intended):

But if destruction of the Union by one or by a part only of the States be lawfully possible, the Union is less perfect than before the Constitution, having lost the vital element of perpetuity.

Notice that “less perfect” is a subjective, personal value judgment – his own vision of “perfect”, but certainly not a universally shared definition even at the time.

His argument also presumes that the remaining North would die if the South left. He is in essence arguing that the South does not have the right to secede because the North needs it – because:

Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination.

Which certainly sounds like he’s introducing something new into the debate – both the idea that the North is going to die if the South leaves and also the idea that the North’s problems justify keeping the South in the Union against its will, regardless of any prior understanding.

This does not sound to me anything like what I understand to have been discussed at the time of the Union’s creation.

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*Pro-abortion advocates preferred to be called “pro-choice”; anti-abortion activists prefer to be called “pro-life”. But at this moment, for my purposes, it seems more honest to ditch the euphemisms.

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