Judicial activism was often intellectually softened by proponents who repeated Al Gore’s quest for a “living, breathing” constitution. For those who wished for the courts to pass laws that Congress should but wouldn’t, the concept of a “living, breathing” constitution was an end run around the legislative process that often encumbered a minority power.
The founding fathers were clearly against this concept. Even the amendment process was designed to primarily correct flaws in the original document that would become evident over time. The British law that governed them was not sourced in a single document like our constitution, but was ruled from several documents and ‘customs’. The ‘living, breathing’ source of British law was an oppressive source of irritation that they sought to avoid in our constitution.
Thomas Jefferson warned, “our peculiar security is in possession of a written constitution and that Americans must not make it a blank paper by construction.”
“.. simply to approve the exercise of federal powers that were never delegated to the federal government on the grounds that some strained interpretation of the Constitution allowed them, or simply that the ammendment process was too cumbersome and time-consuming, was hardly different from having no written constitution at all.”
“The evolution of the unwritten British constitution, the colonists had learned, always seemed to move in the direction of more power for the British government and fewer liberties for the colonies and the people. … Americans, in short, gave their lives fighting against a ‘living, breathing’ constitution..”
from “33 Questions about American History You’re Not Supposed to Ask” by Thomas E. Woods Jr.
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