America's Living Constitution

America has a living Constitution.  The Constitution is living because it reflects the ability of the American people to amend it.  When Americans’ values change or when scientific advance changes politics, the American people can change the Constitution in two ways. 

First, the Constitution says that two-thirds of the House and Senate and three-fourths of the states can vote to amend the Constitution.  Second, two-thirds of the state legislatures can call a Constitutional Convention that can amend the Constitution.  These democratic processes provide for shifts in public opinion. 

The Constitution does not delegate the authority to decide Constitutionality to the federal courts, nor does it give the Supreme Court the authority to legislate, nor does it give the Supreme Court the authority to amend the Constitution.  The Supreme Court claimed that it has the power to amend the Constitution in the case of Griswold v. Connecticut, in which it claimed that it and only it  could identify new  penumbras of the Constitution.  This arrogation of power has given it the authority to invent law, an authority that Hitler claimed for himself through his doctrine of Fuehrerprinzip. 

In contrast, George Washington believed that the president determined Constitutionality, and Andrew Jackson felt no qualms about ignoring the Supreme Court’s claims about Constitutionality.

The Constitution does not delegate authority to amend it to the Supreme Court.  There is no provision for the Supreme Court to update, revise, or change the Constitution based on their claims of penumbras or social evolution, which Supreme Court justices, who are just legal experts, have no authority, knowledge, or competence to determine.  

The claim that the Supreme Court has such authority and that the Constitution is living in the sense that its meaning can be adjusted to reflect the caprices of the Supreme Court justices is another way to express Hitler's principle of Fuehrerprinzip—the theory that his personal whim was law. The phrase living Constitution  means the nine-fuehrer principle: Neunfuehrerprinzip.

The Trump Score Card

Four-and-a-half months into his presidency, Donald Trump has been better than I thought he would be. He  has appointed Betsy De Vos to head the education department, and I believe that Gail Heriot still has a crack at the Office of Civil Rights post.  He has repudiated a climate change treaty that deserves rethinking on Constitutional grounds, as Seth Lipsky points out in his blog in yesterday’s New York Sun.  Moreover, the president still seems serious about regulatory reform.    However, as I point out on Mr. Lipsky’s blog, he has made his best contribution in the way he has rankled the press, baiting them into one absurd impeachment cry after another. 

I rarely watch TV news, but I work out in the Route 28 Gym in Woodstock, NY, and the local lefties inevitably have the TV tuned to MSNBC and Chris Matthews’s mug.  The stridency of his and the other announcers’ carping, caviling, and cussing about President Trump has turned what once could have been fairly called a biased press into one that is shrill and hyperbolic.  The silly Russian story is less serious than the racketeering in which Hillary Clinton engaged, but the MSNBC announcers harp on it and assume that their calls for impeachment will make a difference.   They are discrediting themselves and eliminating any hope for resuscitation of their profession.

Perhaps Trump has encouraged this by design—as someone on Facebook put it, he may have succeeded in goading the media to confusedly charge, much like a bullfighter waving the muleta or red flag at the bull.  If that's not so, the end result will still turn out well.

The press now behaves much like the parties to any social dementia, such as the Salem witch trials, the Negro Plot of 1741, the Red Scare during World War I, or the public reaction to Orson Welles's War of The Worlds.

MSNBC’s Matthews is like the farmer who waved his pitchfork at Welles’s flying saucer.  What we may be seeing is the discrediting of television news and the end of the mid-to-late 20th century's centralized, broadcast news system. If so, Mr. Trump will have done more than a little good on that score alone.