Two Constitutions: One Living…One Dead?
As an armchair “officer” of the Constitution, may I offer some observations of my own?
Madison, the secretary of the Constitutional Convention, if you will, refused to release his notes on the proceedings until his deathbed. Not only because of the nascent Constitution’s fragility, but more importantly because he believed that the true meaning of the Constitution must be revealed by the people, through its implementation; Madison thus hinting at a living document.
Madison even reinforced this view in his creation of the Ninth Amendment out of whole cloth: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Clearly, Madison perceived the Constitution as a living document and enshrined that in text, debated and approved as the Framers’ original intent. Judge Bork, in his failed Senate confirmation hearing for a seat on SCOTUS, called the Ninth Amendment a “water-stain” on the Constitution. Bork was not a fan of a living Constitution.
John Marshall, in establishing the principle of judicial review, based the Court’s unanimous decision on the inexorable logic and practical implementation of the Constitution itself; Congress making a law repugnant to the Constitution, if upheld, would vitiate and obviate the Constitution as a workable document. This was illogical then as it is now.
Lastly, there is Article III Section 2: “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[.]” Surely, two conflicting laws is worthy of adjudication, and common or case law is an ancient judicial tool. We know that the issue of judicial review was debated during the Constitutional Convention, indeed some of the Several States had such provisions written into their own charters. The Convention sidestepped this delicate issue but Chief Justice John Marshall had no such qualms. I believe we are in his debt.
