Dahlia Lithwick quotes some very smart conservatives who have recognized that the whole idea of a "living constitution" is just a way for unelected judges to justify imposing their own personal policy preferences on society:
Here's Jonah Goldberg on the allure of a dead Constitution: "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."
Goldberg goes on to quote Justice Antonin Scalia's dissent in the recent Ten Commandments cases: "What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority, 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."
Dahlia herself is smart enough to recognize that the living constitution is an essential - maybe THE essential - tool of the liberal project. Unfortunately, or so it seems, she's not quite smart enough to figure out a viable defense of the living constitution. So she punts to her readers:
So, I turn to you, dear readers, smart thinkers, and posters of great wisdom in the Fray, to ask simply: Is the living Constitution dead? Are the critics correct?was it all just a great drunken binge of Brennan and Thurgood Marshall's? What is left in its place? Is there room for a Brennan- esque defense anymore? Or am I correct in guessing that Scalia is right this time? Send replies to [email protected] . The best of your answers will be coming soon to a Jurisprudence near you.
At least she recognizes that she wasn't likely to come up with anything useful on her own. Personally, I doubt whether her readers will come up with anything either. The only good constitution is a dead constitution, IMHO.
But I should note that Dahlia's research is pretty skimpy. Her column references a Nexis search for the term "living constitution," which she says produced mainly conservative critiques. If she had skipped over to Nexis' sister service, Lexis, and searched the law reviews, she would find (as I did) over 1000 law review articles in which the term "living constitution" appears, many by some of the leading liberal legal scholars of our day. Maybe she should have spent a little more time on research before just punting.
Alternatively, she could have just popped onto Amazon and bought pre-ordered a copy of SCOTUS Justice Stephen Breyer's new book Active Liberty, of which the WSJ says:
In a book slated for release next month, Justice Breyer -- among the more liberal members of the court -- gives a detailed insight into his philosophy of deciding cases, namely that the Constitution should be viewed in light of its overarching goal, which he sees as creating a participatory, democratic society. In the process, he offers a rejoinder to a longtime intellectual opponent, Justice Antonin Scalia, who advocates "originalism," or a more literal interpretation of the Constitution's meaning at the time of its writing.
... A judge's task, he says, is construing the Constitution in a way "that helps a community of individuals democratically find practical solutions to important contemporary social problems." He calls that freedom to participate in government "active liberty," a complement to passive liberties that protect the individual from interference by the government.
I don't buy Breyer's argument, of course, for precisely the reasons the Journal identifies:
Rep. Tom Feeney, a Florida Republican on the House Judiciary Committee, offers an answer: "Nobody but a subjective, biased judge can determine what active liberty means." Mr. Feeney, who has been a leader among House Republicans seeking to restrain the judiciary, says a better title for Justice Breyer's approach would be "jurisprudential mysticism," since "he thinks he can somehow discern through a crystal ball or a Ouija board what active liberty should produce."
But if I could find it, why couldn't Dahlia? (Kevin Drum found Breyer's book too, mentioning it in a post that attacks originalism, but doesn't offer anything in its place.)
Meanwhile, in related news, it looks like the issue is going to come up in SCOTUS nominee John Roberts' confirmation hearings:
Specter warned Roberts at the beginning of the month that he'd be questioned about the Supreme Court's attitudes toward Congress. In Tuesday's letter, Specter said he wants the nominee to talk to him about "manufactured rationales used by the Supreme Court to exercise the role of super legislature and make public policy decisions which is the core congressional role under the Constitution." (Link )