I posted this answer:
No and yes. The U.S. Constitution is substantive, not just procedural. Substantively, it is unchanging. Procedurally, it is subject to change.
The Constitution stands on a particular philosophical and moral foundation. The philosophy that undergirds America is grounded in human nature and man’s relationship to nature. The Founding generation understood that man is a rational being; and thus that reason is man’s means of survival and living; that reason is an attribute of the individual; that every individual therefore has the inalienable rights to think and act on the judgment of his own mind, in support of his own life, without interference from his fellow man, so long as he/she does not interfere in the same freedom of others. Based on an understanding of man’s nature, America’s Founders believed all individuals are naturally free to self-govern their lives, and the Founding documents reflected this. These principles are grounded in the facts of nature. This grounding is summarized in the Declaration of Independence. This is the meaning of the words of the Declaration of Independence, which holds that all people are born equal in their freedom of self-governance and self-determination.
Through the Declaration, the Founding generation recognized the “certain unalienable Rights” of man, individual man, required by his nature to fulfill this freedom—“among” which are “life, liberty, and the pursuit of happiness.” The right to work, trade, and contract in order to acquire, use, and keep property was considered implicit in these rights, which is why the Constitution explicitly protects private property rights and freedom of commerce while pointedly not authorizing the government to redistribute private wealth among private individuals in any form.**
Society may change, which is why the Founders grounded this country’s government on a foundation that can withstand the changing vagaries of society, or politics, or culture, or powerful factions. Until human nature changes, the substance of the Constitution, that of being grounded in individual rights, is not “living.” The purpose of government is to “secure these rights,” not violate them, and it cannot abandon this obligation based on shifting political, cultural, popular, or factional whims or passions.
I think of the unalienable individual rights of the Declaration as the Founders’ attempt to create a “safe space” to protect individual freedom from societal changes. The U.S. Constitution was written to form a type of republican government designed specifically to protect that safe space. The Constitution is “living” in the sense that governmental procedures can change with changing circumstances, such as with advances in technology. The Constitution allows that “We the People” always be open to procedural or structural changes “in order to form a more perfect union.” The Constitution does, after all, include an amendment process.
In this way, the Founders intended to protect individuals from any form of encroaching tyranny. To protect the governed from societal changes, they established the safe space of unalienable individual rights. To protect the people’s safe space, they created the Constitution to limit the government to establishing those protections. Society may change, and it certainly has. America started as a poor, agrarian society. Today, it is an industrial and technological wonder. Certainly, laws must change to keep up with those advances. The Founders understood this need for progressive government, and the Constitution may be amended to adapt governmental procedures to those changes. But the government’s purpose and job, for which the constitution was created, will always be “to secure these rights.” Until and unless human nature changes, that purpose is eternal. So substantively—that is, in its fundamental philosophical underpinnings—the Constitution is not “living” because “the Laws of Nature and of Nature’s God” remain constant over time.
** [notwithstanding the fact that our current government redistributes wealth on a massive scale.]
Related Reading:
The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty – Timothy Sandefur
What to the Slave is the Fourth of July?--Frederick Douglass, July 5, 1852
On This Constitution Day, Remember the Declaration of Independence
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