[T]he words of the [Eighth] Amendment are not precise, and … their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.
~ Trop v. Dulles (1958)
One of the holiest scriptures of the totalitarian religion of liberalism is the legal aphorism, “evolving standards of decency.” For decades progressives, Democrat legislators, activist judges and humanist law academics have proclaimed their spiritual devotion to this sacred verse of the so-called “Living Constitution” doctrine. That ubiquitous phrase sounds so clinical, so egalitarian, so nice and caring, which belies its surreptitious meaning and evil intent in American law over the past 100 years.
This brings me to the corollary of that phrase, which ironically defines its real meaning – not evolving standards of decency, but devolving standards of indecency.
Living Constitutionalism is based on the idea that society changes, evolves and requires that constitutional controversies comply with evolving societal changes. An early exponent of the Living Constitution jurisprudence was Justice Oliver Wendell Holmes Jr., who as early as 1914 wrote, “The provisions of the Constitution are not mathematical formulas. … They are organic, living institutions.” In a 1987 speech, Justice Thurgood Marshall likewise evoked the Living Constitution doctrine when he said that the law “must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.”
One of the most popular applications of Living Constitution jurisprudence was the Supreme Court’s reference to “evolving standards of decency” in the 1958 case Trop v. Dulles, a 5-4 decision that held it was unconstitutional for the federal government to cancel the citizenship of a U.S. citizen as a punishment. The ruling’s reference to “evolving standards of decency” is frequently cited precedent in the court’s interpretation of the Eighth Amendment’s prohibition on “cruel and unusual punishment.” The Court wrote:
[T]he words of the [Eighth] Amendment are not precise, and … their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.
Since the Trop case, liberal activist judges have used the phrase “evolving standards of decency” repeatedly to either rewrite, pervert or marginalize the Constitution, rendering this sacred document into a meaningless litany of words.
Judge Robert Bork made a compelling critique against Laurence Tribe, a leading exponent of Living Constitution jurisprudence and professor of Constitutional Law at Harvard, when Bork rightly deduced that the Living Constitution doctrine has a protean meaning. Protean denotes that the Constitution can become whatever the person (e.g., legislator, bureaucrat, academic, lawyer or judge) wills it to be in order to reach a desired policy outcome. America, that’s treason!
I am persuaded that the Living Constitution doctrine is a Machiavellian Trojan horse utilized by Democrat lawmakers and liberal activist judges from its creation in the early 1900s through the protean “incorporation doctrine.” In the 1940s this treasonous incorporation doctrine greatly expanded with broad interpretations of the equal protection and due process clauses of the Fifth and 14th Amendments, which expanded these amendments’ application beyond their original intent of checking and balancing Congress, to almost exclusively be applied to the states. Radical federalism now trumps states’ rights.
Here is where the devil is indeed in the details. Liberals love to feign themselves as champions of the poor, women, minorities and the “disenfranchised.” Those who disagree with them are castigated by the government-controlled media as idiots, haters and racists. Public Enemy No. 1 to liberals are America’s Founding Fathers whom they consider the lowest hypocrites for having slaves and demeaning women while placing themselves in the most favored positions in society.
According to the liberal revisionist view of history, racial minorities and women were not entitled to liberty or equal protection at the time of the Constitution’s ratification in 1791, therefore originalism or original intent is an inadequate remedy for these and associated desperate groups to achieve justice. Progressives and liberal Democrats believe that the Constitution therefore must be more proactive to address existential societal needs and that judges are at the vanguard to address these societal concerns and to dispense justice, opportunities and reparations equitably to all citizens.
On the other hand, economist Thomas Sowell, in his 1996 book, “Knowledge and Decisions,” contends that since the original makers of the Constitution allowed for the process of changing it, they never intended for their original words to change meaning. Sowell also uses original sources to contradict the conventional thinking of today that propose there were cases where arguments were never considered from the Constitution’s framers, when the historical record would prove otherwise. In other words, there is nothing new under the sun.
Justice Antonin Scalia is perhaps one of the most well-known and vociferous foes of judicial activism, whereby the judge sitting in the legislator’s chair substitutes his own personal policy views in place of the rule of law. This perverts the entire separation of powers structure of the Constitution and replaces it with an individual’s ability to influence his government, thus transferring that decision-making power from “We the People” to an oligarchy of unelected and unaccountable judges.
Devolving standards of indecency is perverting the moral rectitude of the rule of law for lawlessness and immorality. Fascists like Obama don’t have time to rely on antiquated notions of Congress passing laws under a representative democracy, so he dons his Mussolini hat and becomes the CEO of GM by executive fiat and champions the totalitarian desires of Marxists like Chavez of Venezuela and Zelaya of Honduras, while turning a blind eye to pseudo-democratic nations like China, Russia, North Korea, Sudan, Gaza and Iran.
Devolving standards of indecency presently has Chairman Obama’s eyes set on taking over the U.S. banking system, Wall Street, the home mortgage industry, health care and beyond. To give his fascist decrees the color of law, activist judges like Sonia Sotomayor will be there with the rubberstamp of approval.
Evolving standards of decency in constitutional law always produces devolving standards of indecency in the Supreme Court, in Congress, in culture and society, unless We the People return to the black-letter text of the U.S. Constitution and throw all of the poverty pimps, political hacks and liberal activist judges out of office.
