Skip to comments.Living Constitution, R.I.P.
Posted on 09/30/2005 10:04:38 PM PDT by strategofr
Democratic senators claim not to have learned much from the recent confirmation hearings for (now) Chief Justice John Roberts. I, on the other hand, learned a lot by listening to those senators. An analysis of their rhetoric reveals trends in constitutional interpretation and evolution that are sure to influence the looming battle over the president's second Supreme Court nominee.
Observation #1: Imitation is the Sincerest Form of Flattery Judicial activism has long been a label conservatives use to describe liberal court decisions that seemingly elevate judges personal views above statutory and constitutional law. The Roberts hearings confirm that the term has now become a favorite invective of Democrats. Senator Ted Kennedy accused Roberts of being an "aggressive activist." Wisconsins senator Herb Kohl decried "judicial activists [who] have used [conservative judicial] philosophy to limit our rights and freedoms." And Senator Chuck Schumer labeled Justices Scalia and Thomas as "activist judges" on par with liberal luminary justices Marshall and Brennan.
Many of my right-of-center colleagues found it maddening to watch those senators borrow the judicial activism charge and use it against conservative paragons of judicial restraint. But it's unlikely the Democrats are fooling anybody. Their real concern is that Roberts wont be activist enough to see the constitutional penumbras and emanations that support Roe v. Wade and, perhaps, a constitutional right to gay marriage.
Democrats appropriation of the activist allegation should be viewed as evidence that proponents of judicial restraint are making headway. It is an implicit admission that this critique of liberal jurisprudence has proved effective. Moreover, the Democrats reliance on a so are you argument indicates the absence of a defensible judicial philosophy on the Left. And, like former segregationists embracing civil rights, liberals calls for judicial restraint no matter how insincere are a sign that the times have changed for the better.
Observation #2: Living Constitution Dead at 70? Closely related to judicial activism is the concept of a "living Constitution," one whose principles and interpretations evolve to reflect the changing values of society. While liberals have traditionally embraced the living Constitution, conservative legal thinkers abhor it. They see it as nothing more than an excuse for judges inventing law like the Supreme Court's Miranda warnings and the "right to define one's own concept of existence, of meaning, [and] of the universe."
Given the dependence of the liberal judicial agenda on a living Constitution, it is telling that the term and its equivalents were used only once by a Democratic senator during the Judiciary Committee's five days of hearings and voting. Dahlia Lithwick of Slate reports a similar abandonment in the literature. One can only conclude that liberals now feel the need to distance themselves from the concept. Deprived of the unabashed support of its biggest fans, the living Constitutions best days are likely behind it.
May the living Constitution rest in peace. The concept is utterly without meaning as a legal standard and, instead, is a recipe for unrestrained judicial power. Because the Constitution is a contract between the people and their government, its modification should require the consent of the parties to the agreement. Thus, a living Constitution can be analogized to an automobile lease agreement that the car dealer feels free to modify as his notions of a fair deal evolve.
Observation #3: Don't Say the "A" Word
The classic defense of the living Constitution is that the Framers could not peer 200 years into the future. But the Framers were well aware of that limitation. Thus, they provided us with a democratic method of constitutional evolution, the amendment process, which has proved to be brilliantly effective. Constitutional amendments are responsible for the greatest achievements of our legal system in the nineteenth and twentieth centuries, including the elimination of slavery and the enfranchisement of African Americans and women.
And yet, throughout the Judiciary Committee's proceedings, not a single senator discussed the amendment process except to say that that it was difficult or should be infrequent. This inattention to the Framers intended method of constitutional evolution is paralleled by the period since 1971, during which there has not been a single substantive constitutional amendment. Compare that to the previous hundred years, which saw about a dozen pivotal amendments.
The Amendment process requiring approval by two-thirds of Congress and three-fourths of the states is an arduous one, as the Framers intended. But that cannot fully explain senators disinterest in it. After all, the process is no more difficult than in the heyday of constitutional amendments, and more than 80 percent of the amendments that have been approved by Congress have also been ratified by the states.
The real answer lies in the ascendancy, in recent decades, of a tempting alternative to constitutional amendments, namely the living Constitution and judicial activism. In this age of quick fixes, the amendment process is viewed as too cumbersome by politicians and impatient interest groups. Most significantly, amendments require a solid democratic consensus. That makes them unattractive to the intellectual elite in Congress, the courts, law schools, and think tanks whose evolving values are often out of sync with those of the larger populace. A living Constitution is seductive exactly because it is undemocratic.
But the tide may have turned. The rhetoric of the Roberts hearings suggests that the political viability of judicial activism is waning. Renewed attention to constitutional amendments cannot be far behind. The battle for a humbler approach to the Constitution is hardly over, but the signs are encouraging.
Curt. Levey, an attorney specializing in constitutional law and civil rights, was the director of legal and public Affairs at the Center for Individual Rights from 1998 to 2004.
"But the tide may have turned. The rhetoric of the Roberts hearings suggests that the political viability of judicial activism is waning. Renewed attention to constitutional amendments cannot be far behind."
It'll be awhile before that happens. The dems have no interest because they know they'll lose. The Repubs are still trying to reach the point where we can get a Supreme Court that supports the written Constitution we have. Right now, all change (even ammendments) is scary, after so much invented law.
It is ironic that libs always call the Constitution a living document, but want to have the pet court decisions written in stone. Flawed reasoning there.
Great point. Of course, it's only living if it's in favor of liberals.
I tend to think that the dims are just keeping their powder dry. They know the balance of power lies in the majority of the court not each Justice. Therefore they know if they can thwart O'Connor's replacement that they can swing the court in their favor.
So this was just the quiet before the storm.
This is exactly the argument I have with supporters of Roe, who insist that this country is pro-abortion. Were that so, they wouldn't insist on the faulty legal gymnastics contained in the Roe decision, but would quickly ratify an actual "privacy" amendment which would presumably contain all the nonsensical penumbras they could come up with.
Instead, their insistence on the Roe decision via judicial fiat reveals their lack of confidence in the electorate to provide them with the majority they evidently don't have.
Even if CJ Roberts is a conservative in the mold of Thomas or Scalia and President Bush appoints a similar person to fill the vacancy left by O'Connor retiring, that still leaves a 5-4 court in favor of the Lieberals. It won't be till Buzzy Ginsburg and Stevens are removed that there will be the opportunity to correct the problem.
BUMP for later reading
And never forget the LBJ/FDR view of what is proper activity for the federal government under the Commerce Clause. Such a view is not consistent with small government.
Brilliant analysis of the problem, especially when he points out the real purpose of "the 'A' word."
Everyone should send this to everyone on their ping lists and email lists...
RIP or RIH?
Great article and I hope it's true. Remember, the left is sneaky and at times very patient. Just when they think your not looking they will add an attachment to a bill (like the right to marry your the queer partner in California) and try to ram it through into law under the cover of legal darkness.
Theoretically, there should be no problem when the Supreme Court increases enumerated "rights," except that there is the danger of changing the perception that the American tradition of freedom is positive rather than negative.
Unfortunately, judicial activism also includes increasing the power of central government, of loosening the bonds with which government is contained.
Liberals and evolution "scientists" both distort reality to fit their wrong theories.
That makes them unattractive to the intellectual elite in Congress, the courts, law schools, and think tanks whose evolving values
Socialists and anti-freedom criminals with NO VALUES. They will not go quietly.
I am going to take a nap. Wake me up in three months and I will see if this article is true--and who the new junior justice is!!
"I am going to take a nap. Wake me up in three months and I will see if this article is true--and who the new junior justice is!!"
"Remember, the left is sneaky and at times very patient."
Point well taken. I doubt the author thinks this is the last round of the fight. I don't.
"Theoretically, there should be no problem when the Supreme Court increases enumerated "rights," "
Incorrect. This process is a usurpation of power by the Supreme Court and constitutes, in itself, a destruction of the Constitution.
"When someone says that the Constitution is a "living document" what they really mean is that it is dead."
Agreed. The Liberal "life" of the Constitution is like the brillant growth of mushrooms on a tree trunk---when the trunk is dead.
Wonderful articles - both in your reply, and the original post.
You may not be understanding it correctly, but go ahead and explain if you wish. Gotta run, will come back later and catch up.
If Bush picks Luddig or Jones or Brown the experiment of the past 50 years may be over and this country will slowly pull out of this downspin. I pray Bush does not go weakkneed. I don't think he will.
"Instead, their insistence on the Roe decision via judicial fiat reveals their lack of confidence in the electorate to provide them with the majority they evidently don't have."
Quite so. To reiterate part of an email I sent during the Stop Specter campaign (because it exemplifies the Liberal justification for the Supreme Court making up law):
In the Book, Passion for Truth, By Senator Arlen Specter with Charles Robbins (William Morrow, 2000) Specter explains the key to his thinking about the Supreme Court. (All page numbers cited in this article refer to this book.) Specter states that (p. 331-2) Borks theory essentially held that judges should not make law but should merely follow what was originally intended. In pure philosophical terms, Borks view that the Constitution should be interpreted as it was originally intended appeared to make sense, at least superficially. But the Constitution has turned out to be much more dynamic than that: a living, growing document, responsive to the needs of the nation.
Borks narrow approach is dangerous for constitutional government in America. Without adherence to original intent, Bork said, there was no legitimacy for judicial decisions.
A few pages later (p. 334), Specter gets near to the heart of how Liberals like himself want to use the Supreme Court to transform America. I was troubled by Borks writing and testimony that expanding rights to minorities reduced the rights of majorities. By that thinking, giving a criminal defendant Miranda warnings deprives the police of a confession, which might put a criminal back on the street to harm the majority. While perhaps arithmetically sound, it seemed morally wrong. The [law abiding] majority in a democracy can take care of itself, while individuals and minorities often cannot [referring in the case of Miranda to the minority of people in America that are criminals].
This is about as coherent as can be expected for an argument that supports Liberalism and the Left Wing agenda. However, the notion that it is within the realm of Republican Party thinking is absurd.
Finally, Specter comes to the crux of the matter (p. 337). The story of America is the story of decency and fairness, with the Supreme Court as the guarantor. Robert Bork displayed little grasp of that. After Brown v. Board of Education, nobody could argue in favor of segregated schools. But you dont get to Brown via original intent. You get there via evolving notions of decency and fairness.
"It is ironic that libs always call the Constitution a living document, but want to have the pet court decisions written in stone. Flawed reasoning there."
Good point. I feel that when liberals reason this way, it is a version of Hitler's Big Lie theory. It was Hitler's idea that big lies were safer than little lies. In part, I think it simply has to do with intimidation. It's the sort of reasoning are parents might confront us with when we're very small and they wanted to control us in some particular way. There's actually something scary about people wanting so outrageously. Combine it with the power of the MSM...
Lots of conservatives accept the theory of evolution. I really don't think it's fair to label someone a "liberal" just because you disagree with them on a that issue.