The Proud Duck

Thoughts on policy, history, faith, baseball when I get around to it, waterfowl, and life in general by a junior attorney who'd much rather have Jonah Goldberg's job. Or possibly Darin Erstad's.

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Wednesday, June 29, 2005
Jonah Goldberg likes his constitutions dead, not "living."

I agree with his argument. But I wouldn't phrase it that way, because it cedes to liberals the proper meaning of the concept of a "living Constitution." The liberal use of that phrase was nicely articulated by Al Gore: "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."

In other words, the Constitution means whatever a majority of judges thinks it ought to mean.

Contrast that with Antonin Scalia: “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.”

I hold, along with the authors of the Declaration of Independence (and their intellectual predecessors going back to John Locke, etc.) that governments derive their just powers from the consent of the governed. Accordingly, in order to have legitimacy, any action by government official -- whether by a president, legislator, bureaucrat, or judge -- must be based on an expression of the people's consent to be governed in that manner.

The federal courts derive their power to issue decisions from their authority to decide questions arising under the Constitution and its amendments. The Constitution and its amendments, in turn, derive their legitimacy from the fact that at various points in history, the representatives of the people consented to be governed by them.

It follows that, in order to maintain their legitimacy, the federal courts must interpret the Constitution consistent with the original meaning of its text. That is what its framers consented to -- nothing more or less. When a federal judge takes a Constitutional text and declares that while the original meaning may have been X, the modern American consensus is that it ought to mean Y -- and rules as if the text actually did say Y -- he's taking an action that has no foundation in any expression of popular consent, and it lacks democratic legitimacy.

If the consensus of the American people, informed by their "constantly evolving experience" does indeed hold that the Constitution ought to say Y instead of X, the Constitution provides a mechanism for the people to enact that consensus into law. That is how the Constitution is a "living" document, and it seems to me that it is no less "living" in this sense than it would be if judges were able to manipulate it according to the conventional wisdom of the law schools. Ordinary people are "living" just as much as lawyers; some might even say more so. ("You call this living?!" I thought to myself the other night at 12:30 a.m., trying to finish a project.)

The Constitution lives by being carried forward by common consent from generation to generation, being amended -- again, by popular consent -- as needed to update it as the principles of the American people evolve. Ultimately, the heart and soul of the Constitution is the principle of consensual government it was designed to implement. Ironically, the judicial imperialism liberals are talking about when they speak of a "living Constitution" kills that very soul , by breaking the link between the application of Constitutional principles to present facts and the democratic expressions of consent that gave those principles their legitimacy.


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