The politics of the Constitution

One of the most important considerations in electing a president (perhaps THE most important) is his (or her) ability to appoint justices to the Supreme Court.

Understand the differences between interpreting law and making law. Its the difference between viewing the Constitution as an established document or a ‘living, breathing’ one, (read: relative).

Ed Whelan makes a good case here at Bench Memos for logic and reason in seeing through the arguments for a “living Constitution”. Not surprising that he cites the notorious Ninth.

Follow the argument. It’s brief.

According to [Columbia Law Professor Michael] Dorf, originalists are wrong to contend that living constitutionalists “‘substitute’ their own values for the Constitution’s values, and then use those substituted values as the basis for invalidating legislative action.”  On the contrary, Dorf contends, “no serious judge, lawyer or academic argues for that.”

Oh, really?  Well, just off the top of my head, how about the Ninth Circuit judge that Dorf clerked for, notorious activist Stephen Reinhardt?  In Reinhardt’s words:  “The judgments about the Constitution are value judgments.  Judges exercise their own independent value judgments. You reach the answer that essentially your values tell you to reach.” 

Clear enough.

But there’s more…

And how about Barack Obama, who informs readers of The Audacity of Hope that he “taught constitutional law at the University of Chicago” for a decade?  As I set forth in my new Weekly Standard essay, Obama has explicitly proclaimed that in the “truly difficult” cases (which category is apparently sufficiently malleable to encompass easy cases like Roe v. Wade) “the critical ingredient is supplied by what is in the judge’s heart.”

Reinhardt and Obama are perhaps more candid than many other living constitutionalists, but it’s difficult to see how the rhetoric that the others invoke (e.g., “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”) is anything more than camouflage for casting their own values in constitutional garb.

Follow the argument through to its logical conclusion. It’s clear, and we need clarity.