The concept of a "living Constitution" is dictatorial. That it has gained currency in the US Supreme Court is evidence that the Court's authority needs to be truncated. The Constitution does not give the Court the right to decide on the constitutionality of laws. This is what the Constitutions says in Article III, section 2 about the Supreme Court's powers:
>The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--
between a State and Citizens of another State,--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
This does not say that the Supreme Court has the power to declare a law unconstitutional. Rather, it says that the Court has the power to adjudicate cases UNDER the Constitution AND the laws. In the Federalist No. 78 Hamilton argued that courts had the right to INTERPRET and LIMIT statutory authority:
"It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts."
The Constitution does NOT give the Court this power, but Chief Justice John Marshall arrogated it anyway in
Marbury v. Madison. But judicial interpretation, even if granted, does NOT give the Court any authority to invent new interpretations in constitutional "penumbras" or "emanations" as Justice William O. Douglas put it in
Griswold v. Connecticut. The decision to regulate contraceptives is a state level one, not a federal level one. The distinction is critical because the Court has used this case to arrogate ever more extreme degrees of power to itself. In this, it has gradually become a dictatorial power.
The Constitution is clear that legislation is the province of Congress. It is also clear that there is a method to change the Constitution via amendment. Therefore, there is no need for the Supreme Court to do more than INTERPRET existing law.
During his National Socialist rule Hitler declared that he was the ultimate source of legitimacy in Germany, which he called the leader principle or
Führerprinzip. Under the leader principle all legal, social and economic decision making ultimately rested with him. In a similar manner, the Supreme Court claims a
Führerprinzip to legislate new laws and decide on old ones, which it calls "legal emanations" or the "living Constitution." This is an outrageous and illegal arrogation of power, and it needs to be stopped. The Constitution is specific. The Court can adjudicate cases, nothing more. It is believable that it is necessary for the Court to have the power to interpret constitutionality and to limit legislative authority. But that is all. The living constitution evolves through amendment, not through William O. Douglas's
Führerprinzip.
If the justices are self-serving pigs who cannot stop themselves from arrogating power, the American legal system has failed and it is time to reinvent it, perhaps basing a new statutory system on traditional common law.
