The Proud Duck
Wednesday, February 18, 2004
The main reason I'm skeptical of ("have contempt for"?) the concept of a "living Constitution," as advocated by liberal legal scholars like Laurence Tribe and as recently endorsed by Justice Kennedy in Texas v. Johnson (the case overturning Texas sodomy laws on the basis of what appears to be a recognition of a Constitutional right to freedom of sexual expression) is that it frees judges the duty of ever having to make decisions that are distasteful to them. This is inconsistent with the ideal of the rule of law -- the idea that the law is superior to the rulers.
A jurist who subscribes to a legal philosophy that holds that the legitimacy of a judge's decisions arises from a particular law, whose legitimacy in turn arises from the fact that this law was duly enacted by a means by which the consent of the people to be governed by the law was expressed, will occasionally find himself forced to apply the law in a manner with which he personally disagrees. A judge who opposes decriminalizing marijuana, for example, might find himself forced to conclude that Constitutional provisions of federalism require that a state law's medical-marijuana law be upheld.
A jurist who believes the Constitution's meaning changes over time, on the other hand, will never face the same moral challenge of deciding between his politics and his commitment to the law. If he believes that the purpose of the due-process or equal-protection clauses is to allow judges to enforce prevailing standards of what ought to be legal, he will almost certainly determine that these "prevailing standards" are those he himself holds.
Empirical evidence bears this out. The "non-originalist" approach to Constitutional law invariably results in the finding of Constitutional rights to the exact same liberal values that happen to be held by the decisionmakers themselves. As far as I can find, there has never been a case where a liberal Supreme Court justice applied non-originalist reasoning to arrive at a decision inconsistent with his or her own politics.
Like many nominally religious people, they have created a god that has the advantage of never disagreeing with them.