Right On: Living Constitution: Making it up as they go along

Images courtesy of Pixabay, St. George News

OPINION — Liberal judges have a lot in common with Humpty Dumpty in “Through the Looking Glass”:

“‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean – neither more nor less.’

“’The question is,’ said Alice, ‘whether you can make words mean so many different things.’

“‘The question is,’ said Humpty Dumpty, ‘which is to be master – that’s all.’”

Unelected liberal judges, appointed for life, act as masters of us all. All too often they issue expansive judgments and create new rights purportedly guaranteed by the Constitution. Once they’ve ruled, Congress and the people are relegated to the sidelines.

This house of cards is built on the concept of a “Living Constitution.” As described on the uslegal.com website:

Living Constitution is a term used to describe the Constitution’s ability to change to meet the needs of each generation without major changes. It is based on the notion that the Constitution of the United States has relevant meaning beyond the original text and is an evolving and dynamic document that changes over time. Therefore the views of contemporaneous society should be taken into account when interpreting key constitutional phrases.

Like Johnny Depp’s Captain Jack Sparrow in “Pirates of the Caribbean,” liberal judges make it up as they go along.

Supreme Court Justice Anthony Kennedy’s retirement threatens to spoil the party. A New York Times opinion column headline bemoans the liberal predicament: “Kennedy Is Gone. Now Vote.”

What a novel idea to come from the oracle of liberalism. After decades of using the courts to “discover” new rights, bypassing the other two branches of government, liberals come face to face with something largely foreign to them: our constitution and laws as they were written and intended.

Reading through the Times’ editorial shows just how wedded the paper is to making it up as it goes along. It prefers having judges find that the latest liberal cause du jour is enabled by one or another of the constitution’s clauses.

The Times says “millions of Americans have long turned to the court for the vindication of many of their most cherished rights and protections.” Too many of those cherished rights have been legislated from the bench by judges who twisted themselves into knots to justify their rulings.

The “Living Constitution” is at the root of the Supreme Court’s two most controversial decisions in our lifetimes.

Abortion was justified by a right to privacy supposedly guaranteed by the Constitution’s due process clause. No right to privacy per se appears in the Constitution.

With only a little imagination, it’s easy to envision all kinds of currently illegal activities that could be justified by enterprising judges using the court’s “reasonable expectation of privacy” criterion.

The court found a right to same-sex marriage in the Constitution’s equal protection clause. The Constitution says nothing about marriage, reserving it for the states.

Yet the court refused to hear a case challenging Utah’s prohibition on polygamy. So who gets equal protection and who doesn’t for non-traditional marriage?

Equal protection is a phrase so broad as to allow almost any interpretation across many facets of our lives. It gives liberal judges license to impose their interpretations of social justice on society.

Consider two social questions that conceivably could be brought to the Supreme Court under the Constitution’s frequently-abused commerce clause: gambling and marijuana.

Should five unelected justices be able either to legalize or to prohibit them nationwide, decisions that would require near-impossible constitutional amendments to reverse?

I believe a “Living Constitution” is no constitution at all.

I believe the courts should not be in the business of etching their opinions on controversial social issues in constitutional stone.

I believe the court erred by failing to refer both abortion and same-sex marriage to Congress where decisions on social issues belong. It’s time our elected representatives started making the tough calls instead of breathing a sigh of relief and shrugging their shoulders when a court ruling takes them off the hook.

I’m with the Times on one key point: vote. Whether you favor or oppose abortion or same-sex marriage, or for that matter, polygamy, gambling or marijuana, elect a Congress or state legislature that will act accordingly.

Here’s hoping Justice Kennedy’s replacement puts a nail in the coffin of the “Living Constitution.”

Howard Sierer is an opinion columnist for St. George News. The opinions stated in this article are his own and may not be representative of St. George News.

Email: [email protected]

Twitter: @STGnews

Copyright St. George News, SaintGeorgeUtah.com LLC, 2018, all rights reserved.

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  • bikeandfish July 5, 2018 at 3:51 pm

    If it weren’t for judicial review, there would be absolutely no need for a third branch of the federal government like the Supreme Court. The fact is conservatives are only afraid of a “living Constitution” because it has removed their ability to infringe on personal liberty at the state and local level. Our founders were multitude and knew men like Seier would love to dominate minority classes and women under local decree on “social issues”. Our founders knew that men like Seier would be fine with tyranny of the majority and were wise enough to provide checks and balances to such abuse. Because Seier’s “social issues” is just political marketing to make it seem like its fine to deny basic liberties to classes of citizens that don’t have the numbers to prevent oppression from the majority.

    And when we can get to the point of truly respecting the healthy relationships of two people then maybe we can investigate the various polyamorous relationships like Howard mentions. But that only involves consensual adult relationships, not the sexual abuse and assault of the FLDS, snd others nationally. But my guess is Howard is knowingly throwing us a red herring.

    • IPFreely July 5, 2018 at 5:46 pm

      There is a reason the constitution is what it is. That way morons like you can’t screw things up. Butt Frencher why don’t you put the helmet back on and stop licking the windows. Let the adults run things for awhile…

      • John July 5, 2018 at 6:29 pm

        Well said IPFreely! The outspoken blowhard B&F is clueless about The Bill of Rights and the way the Constitution is applied to law to make sure laws are fair and just. The Constitution is full of principles that are the guidelines for all other laws. B&F if you mess with the foundation of a building without knowing what you are doing that building will crash down on your head. Since you know nothing about The Constitution, like most other progressives, any attempt to subvert The Constitution shall fail.. Heads are exploding already over the fact that a new Supreme Court justice will be appointed before they know who it might be. The left is unhinged, throwing tantrums and running around like chickens without a heads. That blue wave is really beginning to look like that leak at the bottom of a porta potty..Quite a funny predicament they find themselves in..Keep chasing that carrot ..

      • bikeandfish July 5, 2018 at 8:49 pm

        That comment wasn’t even legible.

        Can you show me in the Constitution where it explicitly defines the limitations of judicial power and review? Would love to see your actual explanation on where my construct is wrong. Because the framers understood the courts of the colonies and seemed to support the checks and balances provided by SCOTUS, hence its creation.

        I’m guessing you lack the ability to have an adult conversation about the role of SCOTUS and the Constitution or you would have commented like an adult the first time.

        Still think you are likely the schizophrenic sock puppet of John’s. Neither of you seem all that connected to a functional reality.

        • John July 5, 2018 at 9:10 pm

          Not by a pompous blowhard uneducated troglodyte like you. Anything above counter height is over your little self centered head. Read The Constitution sometime genius. You are truly clueless B&F. And of course you will make some long winded inane comment and try one of your famous rabbit trails that never make a point or even present a coherent thought. People are tired of being talked down to by your conceited not so knowledgeable rants. So quit trying to act like the “know it all” that you aren’t and be a real person sometime instead of the back end of a horse all the time.

          • No Filter July 6, 2018 at 12:15 am

            B&F might be long winded at times, but I guarantee he has read the constitution more times than you. I bet you can’t tell us who wrote the initial constitution before it was finalized by our founding fathers. Don’t use google, that’s cheating! I’ll give you a hint, it wasn’t Donald Trump.

          • John July 6, 2018 at 8:16 am


          • bikeandfish July 6, 2018 at 9:48 am


            I definitely write some long posts at times.

            I actually referenced my copy of the Constitution, sitting on my dresser, for this very article.

            Gotta love that John replied directly to a reply to IPFreely. The irony and further proof.

          • John July 6, 2018 at 10:14 am

            hahahahahaha! you may have a copy but you clearly never were capable of comprehension.. IPfreely knows what he’s talking about unlike you listless know it all! Pompous blowhard that you are…

  • RadRabbit July 5, 2018 at 4:39 pm

    I wouldn’t even call them “liberals” anymore just flat out leftist, clamping down on free speech and individual freedom isn’t liberal at all. The reason the left tries to push so much of this living document crap is they can’t get any of the changes they want through the legislature where laws are actually made. The Judicial branch is not for carving out special laws for political ideologies its to interpret the current law as it was written, if you want the law to say something different then write a bill vote on it and make it law.

    • bikeandfish July 5, 2018 at 8:52 pm

      So how do they interpret the law then? Because the cases Howard describe build on “interpretation” of other laws, cases and historical texts. And remember, the cases Seier is condemning expanded individual liberty in the face of individuals trying to force others to obey by personal ideology. That sort of expansion of individual choice is very much in the spirit of the Constitution and other founding documents.

      • John July 6, 2018 at 8:44 am

        B&f you are clueless just like clogged filter..hahahahahahaha!

  • IPFreely July 5, 2018 at 4:50 pm

    All the liberal crap is falling apart. Wonderful time to be alive!

    • John July 5, 2018 at 6:31 pm

      WINNING!!……and laughing all the way…hahahahahahahahahaha!

  • utahdiablo July 5, 2018 at 10:41 pm

    Right on Brother..

  • jaltair July 6, 2018 at 2:56 am

    Very well thought out and authored piece of truth Howard Sierer.  Thank you.

    B & F:  The Supreme Court Branch isn’t there to make law, Congress does that.  The Supreme Court is there to make decisions about cases from lower courts . and to assure our country holds to Constitutional standards set by the wisest of the time, and that all rights endowed to men by the creator are upheld.  Following these rules ensures that our liberties are preserved.  One thing the Supreme Court has no authority over is impeachment (a political process).

    The Constitution is not a “living” document, it is the solid backbone of the USA.

    Article III of the Constitution showing powers of the Supreme Court:


    • John July 6, 2018 at 9:19 am

      Thank you for clearing that up for pompous “know it all” b&F

    • bikeandfish July 6, 2018 at 9:45 am

      Never said the SCOTUS can legislate. That is a myth fabricated by the right when the courts rule in a way they don’t like.

      I’m fully aware of Article III, hence asking for someone to show me the explicit limitations of SCOTUS rulings. As you stated, they are only allowed to take certain cases but it doesn’t define judicial review at all. When you study history its obvious the founders knew of judicial tradition and the checks snd balances role such a court could play in tamping down legal over reach. And like I previously said, the cases Howard highlights protect individual liberty in the face of tyranny of the majority. That tradition is very much in the spirit of thr Constitution.

      And the is the same reason I can support SCOTUS rulings like Heller. There are always those who will desire the power to oppress others via law and the courts are there for individual redress.

      • John July 6, 2018 at 10:16 am

        Oh shut up second grader.. https://www.usconstitution.net/constkidsK.html

        • bikeandfish July 6, 2018 at 10:53 am

          Can you show me explicitly where it defines judicial review, John? You claim to know the documo so well that satisfying that request should be simple. And in your owns words with support, not copy and paste plagarism.

          • jaltair July 7, 2018 at 3:48 pm

            Your question about judicial review got me going! I studied our Constitution for an entire afternoon and found it said zero about judicial review.

            (Sorry, some not in my own words) The Supreme Court set the precedent in 1803: … “the Supreme Court, led by Chief Justice John Marshall, decides the landmark case of William Marbury versus James Madison, Secretary of State of the United States and confirms the legal principle of judicial review–the ability of the Supreme Court to limit Congressional power by declaring legislation unconstitutional–in the new nation.” (https://www.history.com/this-day-in-history/marbury-v-madison-establishes-judicial-review)
            I still cannot find where the Supreme Court is limited in judicial review other than in an impeachment.

            Thanks for the challenges you give, i love to learn, even if I’m old!

          • bikeandfish July 7, 2018 at 8:16 pm

            No worries, Jaltair. Its a complicated subject that has challenged generations.

            I figure if we are driven by questions more than binary answers than we are likely heading in the right direction.

            Thanks for engaging. We likely disagree on some things but I find that is where I learn the most.

      • John July 6, 2018 at 11:06 am

        Don’t need to, your total non understanding of The Constitution is proof that you are clueles and one noisy pompous blowhard.. here is a link to The Constitution for Third graders, maybe that might be a little over your head too! https://www.usconstitution.net/constkidsK.html

        • bikeandfish July 6, 2018 at 11:57 am

          Once again you have proven an ability to do anything other than vomit insults, John. Or do you prefer to be called IPFreely?

          • bikeandfish July 6, 2018 at 12:07 pm

            Oops, *an inability

          • John July 6, 2018 at 3:06 pm

            Oh poor babyandfluke, You are such a pompous blowhard. You little uneducated self can’t handle the facts, there is a version for pre schoolers.. The Constitution is what it is and it isn’t what you want it to be. Too Bad for you. You lose drop out!

          • bikeandfish July 6, 2018 at 4:05 pm

            Ah, now I’m a dropout. So many inconsistency insults to keep up with.

            I would sure love to be educated out of my delusion by someone so wise.

          • John July 6, 2018 at 5:00 pm

            Well bloat and fake, you are uneducated and have a real problem with facts that don’t live up to your misinformation.. dropout blowhard know nothing crybaby that you are and the only degree you possess is your deodorant . LOSER!! hahahahahahahaha!

          • No Filter July 6, 2018 at 5:15 pm

            I still can’t figure out whether to feel sorry for John because he may have a learning disability or to write our local law enforcement about doing more to fight the meth problem on our county. Either way I hope he and IPfreely get the help they need.

          • bikeandfish July 6, 2018 at 6:32 pm


            I feel sorry for him. He’s clearly not well. No one can behave so recklessly and hatefully and actually be well. He’s what happens when extreme partisanship is allowed to metastasize for decades. It lacks reason, intelligence and civility and just turns into a deranged us-versus-them schizophrenia.

            Its unfortunate but I think we are going to see more of it before things get better.

        • John July 6, 2018 at 5:58 pm

          cloggy, your’e a clueless loser and nothing will ever change that. IF you had half a brain you’d be bikeandfish! hahahahahahaha! PUTZ

  • Craig July 6, 2018 at 8:54 am

    A living Constitution is a lie. There is nothing in the Constitution even remotely suggesting this.

    The living Constitution is accomplished by legally amending it.

    “It says what it says and it doesn’t say what it doesn’t say.”

    Claiming legally following the Constitution is something subversive by conservatives is inane.

    If people are confused, read it. It was written for us, not constitutional scholars who can parse it so well as to radically change its meaning.

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