Better off dead
Jonah Goldberg
June 29, 2005
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.
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.
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.
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.
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).
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 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."
The reference to "thumbs up or thumbs down" is apt. Caesars ruled in
such ways.
Liberal defenders of the living constitution say all of this is hysteria by
right wingers. We don't need radicals who want to "turn back the
clock." Men
with a "moderate" or "judicial" temperament and a
"humane vision" make the best
justices.
Yeah, well they make the best Caesars, too. That's not an argument for turning
back the clock and being ruled by five of them.
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