The U.S. Supreme Court’s recent affirmative action and sodomy decisions were attended by a great deal of debate: Does Grutter v. Bollinger point to the eventual end of racial preferences or does it entrench them? Does Lawrence v. Texas
increase the likelihood of judicially mandated gay marriage? Even if
you agree with striking down anti-sodomy laws (as I do), was Lawrence the constitutional way to do it? What are the permissible ways of achieving campus diversity under Grutter?
These are all important issues, but it is worth noting how much attention
is paid to the political and policy concerns as opposed to the constitutional
questions that the Supreme Court is called upon to resolve. Indeed,
the rulings themselves seemed to be based in large part on political considerations.
It is said that the Court follows the election returns, but nobody elected
them to be a national super-legislature of last resort.
Whatever you think of either decision, they both read like political treatises
in search of constitutional rationales rather than politically neutral applications
of the written law. In Lawrence, Justice Anthony Kennedy wrote
a majority opinion that overturned Court precedent on a divisive social issue,
even though that would seem to be at variance with the position on stare decisis he took in upholding legal abortion in Casey v. Planned Parenthood. Concurring was Justice Sandra Day O’Connor, who voted the opposite way when the question last came before the Court in Bowers v. Hardwick. O’Connor’s majority opinion in Grutter seems to suggest that some of the affirmative action programs that are now constitutional will cease to be in 25 years.
In other words, these two justices apparently do not believe that the Constitution
has any fixed meaning. Instead of explaining how they became persuaded
that their own prior interpretations were mistaken, they seemed to be tailoring
their rulings to the circumstances. It is difficult to escape the conclusion
that they decided to vote the politically correct way first, and worked out
a constitutional justification later. One wonders how they would have
voted in a climate where elite opinion on these subjects was different.
Justices Kennedy and O’Connor, both Republicans appointed by President Reagan,
are not unique in seeking to re-interpret the Constitution in this fashion.
A great many highly pedigreed jurists and scholars regard this as perfectly
acceptable, a way of treating the Constitution as a “living document.”
During one of the 2000 presidential debates, Al Gore said that he would appoint
justices “who understand that our Constitution is a living, breathing document.”
He suggested “it was intended by our founders to be interpreted in the light
of the constantly evolving experience of the American people.”
How ironic: Appealing to the Founding Fathers in order to rationalize a complete
disregard for their intent in framing the Constitution. A written constitution
that can be interpreted to mean the opposite of what those who drafted it
intended is no constitution at all. The idea that the Constitution
means whatever some branch of government says it means is inimical to the
rule of law. Law, especially constitutional law, must bind the government
as well as the governed.
Of course, the Founding Fathers did intend some flexibility and room for
interpretation within the Constitution. Farsighted as they were, not
even they could anticipate every issue that could be raised or every need
of the new Republic. Just because technology changed to make trucks
part of a postal service and an air force part of national defense does not
mean that the Constitution must be changed. For greater changes
allowing the federal government to assume new powers, they devised an amendment
process. This is a built-in process to change the Constitution by soliciting
the consent of the governed, in sharp contrast to the modern notion that
it can be changed by the “reinterpretations” of nine unelected judges.
Our entire constitutional framework makes clear that it could not be any
other way. The Constitution contains the enumerated powers that the
American people delegated to the federal government. The only legitimate
way to change those powers is to have the people consent to the changes.
Contrary to Gore’s assertion, the Founders would have unilateral changes
to federal power by the federal judiciary, a branch of the central government,
to be usurpation rather than part of the constitutional design.
Go back to before the Constitution was even written to the Declaration of
Independence. This nation was founded upon the idea that government
derives its powers from the consent of the governed. The government
has no legitimate power that the people did not first grant. A “living
Constitution” turns this notion on its head, allowing the federal government
to have powers beyond what is constitutionally enumerated, beyond what the
people have consented to, according to the rulings of its own courts.
As Joe Sobran has pointed out, the “living Constitution” isn’t even consistent
in how it “evolves.” Its “growth” almost always appears to be in the
liberal direction. Rights to privacy that support liberal views of
human sexuality consistently expand while explicit Second Amendment rights
to bear arms contract. The First Amendment right to free speech is
expanded to include topless dancing but contracted to exclude political speech
subsidized by soft money contributions. The First Amendment’s guarantee
of religious freedom is interpreted to prohibit local governments from “establishing
religion” by allowing Christmas displays in the town square, but not to regard
relatively innocuous public school commencement prayers as free exercise.
Not everything that has been done in the name of the “living Constitution”
has been bad. Sometimes state and local governments have exercised
constitutionally legitimate powers in the service of unwise and even unjust
laws. Other times legislative leaders have been maddeningly slow to
respond to social needs and changes. In those cases, it is understandable
why people are willing to resort to the courts to change the status quo by
tweaking the Constitution a bit, even if they will come to regret the precedent
But the concept is irredeemably bad. Law can be changed, but it needs
to have fixed meaning in order to serve as something other than the rulers’
passing fancy. To treat the Constitution as something other than an
independent law in itself is to render it useless as a limitation on government
power and blur the separation of powers. A living Constitution may
sound good, but it will kill the rule of law upon which our Republic rests.
W. James Antle III is a Senior Editor for EnterStageRight.com and a primary columnist for IntellectualConservative.com. He is a freelance writer from Boston, Massachussetts.