Why follow "the dead hand from the past"?

"The dead hand from the past" is how perpetual constitutions have been described. This phrase refers to the fact that an ancient document (such as the more than 200-year-old United States Constitution) controls the legal lives of people and the government in the 21st century.

Those who advocate for constitutionalism say that the Constitution is the supreme law to which all statutes and government actions must abide. Any act or rule in violation of the Constitution is void. This is the reason why jurisprudence on relevant provisions of the 1935 Constitution (which was amended by the 1973 Constitution which, in turn, was amended by the present Constitution), an 85-year old document, are still legally controlling until today.

The present 1987 Constitution is a 33-year-old document from a different generation. The big question is this: why would an old document control the future of a society that has been undergoing modernization? Why should we, as a people, allow "the dead hand from the past" to hold our progress back? In other words, how can it be justified that the decisions and laws of today are heavily influenced by something written by people who are now probably dead?

The proposition that unborn generations should be governed by a writing of framers and drafters long dead has been doubted not only by many but also by the Founding Fathers of the United States of America.

The year the United States Constitution was ratified was also the year the French Revolution broke out and Thomas Jefferson was there to witness it. In this letter to James Madison Jefferson asks whether or not "one generation of men has a right to bind another," either in the form of a financial debt or a political obligation to obey a constitution of laws not contracted by that individual. He comes to the surprising conclusion that any constitution (the American included) has to lapse roughly after every generation (actually, based on his calculations, every 19 years) since it was first singed and ratified. Thus, the American Constitution should lapse and become null and void in 1808. Jefferson believed in the principle that "the earth belongs to the living and not to the dead" which meant that previous generations could not bind the current generation to pay their debts, or require them to work in their father’s occupation, or to accept the laws and constitution drawn up by their ancestors. In his mind, "no society can make a perpetual constitution, or even a perpetual law." The only "umpire" between the generations was the law of nature."

Thomas Jefferson suggested that the Constitution expire naturally every 19 years, but the idea was rejected as unworkable. He thought of 19 years as how long a generation lasts.

Agreeing with Thomas Jefferson, Noah Webster remarked that ''the very attempt to make perpetual constitutions, is the assumption of a right to control the opinions of future generations; and to legislate for those over whom we have as little authority as we have over a nation in Asia.''

Thomas Paine also doubted the idea of an old book written by the dead governing the living. "Every age and generation must be as free to act for itself in all cases as the age and generations which preceded it. The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies. Man has no property in man; neither has any generation a property in the generations which are to follow."

The three above may have a good point. For example, in the United States during the time of the promulgation of their constitution, slavery of black people was not considered evil. In fact, the term "no person shall be denied the equal protection of the law" referred only to white males. Women, at that time, were not allowed to vote. Should these historical backgrounds affect the interpretation of the Constitution today? The humbly submitted answer is "of course, not."

The above discussion is called the "dead hand problem" which questions the morality and consistency of the theory of originalism and textualism. It also exposes the unexamined adherence to, and sometimes worship of, constitutions.

There is no conclusion here.