Where to begin on this? Jonah Goldberg‘s recent column for Townhall.com (enough said, some will (correctly) say) begins with an interesting notion, although it foreshadows nonsensical babbling. Consider:
In Washington, conservatives and liberals are quietly loading up on drinking water, D batteries and extra ammo, in preparation for the coming battle over judges. Ralph Neas himself has been seen by the campfire carving notches into the stock of his rifle, muttering, “Pain don’t hurt.” No one knows when the fight’s coming, but everyone knows it is. But while we’re digging fresh foxholes and listening to our Vera Lynn records, waiting for the blitzkrieg, it might be worth taking a step back to look at the big picture.
This is a battle between the forces of life and death, and, as inconvenient as it may be to the marketing efforts of abortion opponents, we are resolutely on the side of death. For we are those who believe the only good constitution is a dead constitution.
Having read that far, he intrigued me. Is he saying we should kill the Constitution and start over? Obviously there are a few things in there that he wouldn’t like, so better to scrap it, I guess. I only had a little information, but I prepared for the inevitable “activist judges” gargoyle to appear, and soon. Sadly, Mr. Goldberg only alludes to it. But it’s there in abundance, which will be obvious in a moment.
We’ve all heard about how great living constitutions are. The most extreme, but essentially representative, version of this “philosophy” can be found from the likes of Mary Frances Berry or the Los Angeles Times’ Robert Scheer. They matter-of-factly claim that without a “living” constitution, slavery and other such evils would still be constitutional. This is what leading constitutional legal theorists call “stupid.” The constitutionality of slavery, women’s suffrage and the like were decided by these things called the 13th, 14th and 15th Amendments. Also, contra feminists, women got the vote not through a living constitution but by the mere expansion of the dead one – via the 19th Amendment.
I get it. Citizens decided that they weren’t happy with the specifics of the Constitution, so they changed it. Brilliant. Why doesn’t everyone who believes in a “living” constitution know that crazy little footnote? But I know, he means to imply that we need to fix the handiwork of “activist judges”. He didn’t say that, but I know it’s coming later on. I’m jumping ahead.
Back to where we were.
This is not to say the “living constitution” is a myth. “It’s alive!” all right, as Dr. Frankenstein might say. Supreme Court justices have found the most interesting things swimming in the penumbras and emanations of the U.S. Constitution. The point is merely that it is batty to argue that constitutional change is impossible unless we view the Constitution as a completely viable life outside the womb of historical context and principled meaning.
There it is. He didn’t say it, but it’s there. Whew. Four paragraphs in is a looooong time to wait for the
conservative’s verbal “money shot” first appearance, even if only its shadow arrived. Maybe Mr. Goldberg will stop teasing and just say it already. Let’s see:
The more reasonable arguments for a living constitution revolve around the view that society is changing too fast and the Constitution-as-written must grow to stay relevant. Al Gore said in 2000, “I would look for justices of the Supreme Court who understand that our Constitution is a living and breathing document, that it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people.”
And it’s obviously true that the founders never envisioned a world of embryonic stem cells or retinal-scan cat doors (coming soon!). And there are good answers for what the Supreme Court should do when the Constitution is truly silent on an issue. For example: It should stay silent.
“It should stay silent.” Bingo. So, what Mr. Goldberg instructs is that “activist judges” should ignore their duties when faced with an issue on which they might
rule in favor of the liberals misread the Constitution. Better to let Congress act until the citizenry acts (through Congress) to amend the Constitution. Wise.
So what’s the solution in America 2005?
But the problem here is that these arguments are all on the opposition’s turf. Conservatives aren’t merely anti-living Constitution – we are pro-dead Constitution. In order for us to live in freedom, the Constitution must die (Faster, Federalist Society! Kill! Kill!).
The case for dead constitutions is simple. They bind us to a set of rules for everybody. Recall the recent debate about the filibuster. The most powerful argument the Democrats could muster was that if you get rid of the traditional right of the minority in the Senate to bollix up the works, the Democrats will deny that right to Republicans the next time they’re in the majority (shudder).
Remember, we’re in the rule of “with us or against us”. Every decision funnels through a prism of Conservative or Wrong. There are no shades of grey, and definitely no shades of chartreuse, bisque, or fuchsia. Binding rules are perfect for that mindset. We don’t want to reinterpret anything under changing times. It’s better to amend than to understand, I guess. Which leads us to this:
The Constitution works on a similar principle, as does the rule of law. Political scientists call this “precommitment.” Having a set of rules with a fixed (i.e., dead, unliving, etc.) meaning ensures that future generations will be protected from judges or politicians who’d like to rule arbitrarily. This is what Chesterton was getting at when he called tradition “democracy for the dead.” We all like to believe that we have some say about what this country will be like for our children and grandchildren. A “living Constitution” denies us our voice in this regard because it basically holds that whatever decisions we make – including the 13th, 14th, and 15th Amendments – can be thrown out by any five dyspeptic justices on the Supreme Court. In other words, the justices who claim the Constitution is a wild card didn’t take their oath to uphold and defend the Constitution in good faith because they couldn’t know what they were swearing to.
What if our children and grandchildren don’t like what we do to their country? I’m just saying. Can we really make the Constitution “dead” and the Bill of Rights “living” and expect it to be perfect? Or will we encounter growing pains? I’m just saying.
Mr. Goldberg offers guidance and insight in the form of a quote from Justice Antonin Scalia, of course. Consider:
“What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority,” Justice Scalia wrote this week, “is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle. That is what prevents judges from ruling now this way, now that – thumbs up or thumbs down – as their personal preferences dictate.”
Right, because Justice Scalia rules on consistently applied principle and not personal preferences. The First Amendment says what it says and conservatives like Justice Scalia honor the words of our Founding Fathers on this. Just as a
But I’m not a constitutional legal theorist. Except, no, I really am a Constitutional legal theorist. Mr. Goldberg doesn’t say I have to have a J.D. to be a constitutional legal theorist. I don’t want to read any words into his statement that aren’t there, so I must now reconsider. I’ve written enough about what the Constitution should mean, filling tens of hours of non-financially and non-legally productive time, that I have to have some reasonable term for why. What better title than the simple three word suggestion from Mr. Goldberg. There is the bump that is the fourth word (“leading”) in Mr. Goldberg’s proffered title, of course, that gets in the way, but I think highly of my mind, so there it is. Thus, I now confer upon myself the title of (leading) constitutional legal theorist.
But I’m still stupid.