Saturday, March 25, 2017

Close Encounters with a ‘Living Constitution’

By Jonah Goldberg
Saturday, March 25, 2017

I’m writing this — or at least this sentence — from the Red Flame Diner in New York City. They’re going to have to work a little harder to get that Michelin star, but the Arizona Omelet (onions, cheese, jalapenos) wasn’t half bad.

Now that’s the kind of thrilling scene-setting you’ve come to expect from this “news”letter. You’re welcome.

I’m tempted to just leave it there and call it a day given that my mood is not what you would call “good.” (Hey, what’s the emoji for metaphysical dyspepsia and spirit-grinding weltschmerz?)

But let’s say, for the sake of argument, that after I ordered the Arizona Omelet, the waitress brought me a bowl of oatmeal.

I might say, “I didn’t order this.”

Waitress: “Yes you did. That’s the Arizona Omelet.”

“This is oatmeal,” I’d say. “The menu says that the Arizona Omelet has cheese and onions and jalapenos in it. It also says it’s an omelet.”

Waitress: “Well, we here at the Red Flame believe that the menu is a living, breathing document that changes with the times. Oatmeal is healthier than an omelet, and we feel that people should eat more of it. So, we only serve oatmeal, but we call it by different names.”

Now, I could have taken up a lot more of your time by making my point more gradually, describing round after round of just slightly wrong orders. That’s more like how the doctrine of the “Living Constitution” works in real life. A judge makes a small leap of interpretation that seems reasonable — say, replacing onions with shallots, which after all, are a kind of onion. Then the next judge makes another incremental hop in interpretation. And then another. And another. Until eventually the waitress brings me the head of Alfredo Garcia (not the one from the movie but Alfredo “Freddie” Garcia, the short-order cook who before his untimely death worked at the Red Flame Diner) who was infamous for his onion breath.

But the point is the same. It’s like a game of telephone.

There are some issues where I think liberals have a sincerely held, rational, and legitimate point of view that I simply disagree with. But the doctrine of the Living Constitution is not one of them. Oh, I am sure it is sometimes one or two of these things — sincere and rational or legitimate and sincere — but, ultimately, it’s never all three.

Consider Dianne Feinstein’s performance during the Gorsuch hearings in the Senate. “I firmly believe that our American Constitution is a living document, intended to evolve as our country evolves,” Feinstein said. “So, I am concerned when I hear that Judge Gorsuch is an ‘originalist’ and ‘strict constructionist.’”

Yeah, okay. But at the same time, Feinstein prattled on about how Roe v. Wade is a “super-precedent,” which I assume is a version of what Senator Arlen Specter (D., R. & I., Republic of Jackassistan) called a “super-duper precedent” — which actually sounds more intelligent when sung by Young Frankenstein.

After noting a bunch of court cases that reaffirmed Roe, Feinstein went on to make an additional point: “Importantly, the dozens of cases affirming Roe are not only about precedent, they are also about a woman’s fundamental and constitutional rights.”

I’m a bit fuzzy about what she sees as the distinction between fundamental and constitutional rights, but that doesn’t matter. Clearly her bedrock belief is that the process of constitutional evolution stopped with Roe v. Wade. One might say that instead of being a 1789 originalist, she’s an originalist of 1973.

As Bill Clinton said to the intern after sitting on the couch and patting his lap, do you see what I’m getting at?

Tampering for Me, But Not for Thee

The doctrine of the Living Constitution is a perfect example of how behind every double standard is an unconfessed single standard.

One of my longest-running peeves is how so many public bathrooms require me to touch a door handle that non-handwashers have used. But that’s not important right now. Another of my long-running gripes is how whenever Republicans propose amending the Constitution, Democrats suddenly freak out about how wrong it would be to “tamper” with the Constitution. It’s a weird position to hold when you see nothing wrong with liberal judges reading new meaning into the Constitution.

Similarly, during the Bush years, when alleged NSA wiretapping of American citizens (not named Flynn) offended Democrats, they loved to declare themselves champions of the Constitution and the Founders, quoting at the drop of a tri-cornered hat Ben Franklin’s line that “those who would sacrifice liberty for security deserve neither.”

It apparently hadn’t occurred to them that the doctrine of a Living Constitution can sanction things they don’t like, too. This itself is ironic, given that the principle author of the Living Constitution idea — Woodrow Wilson — saw no problem in prosecuting thought-crimes, jailing political dissenters, and domestic spying.

But let’s get back to Feinstein. She was also horrified that Gorsuch is a critic of the Chevron Doctrine (which gives the benefit of the doubt to bureaucrats to interpret the law as they see fit). She insisted that it must not be revisited or amended in any way. Gorsuch correctly believes that the Chevron decision gave too much power to bureaucrats to invent laws, treating legislation as living, breathing documents too.

Feinstein insisted that experts must have the power to do what they think is best, even if Congress did not grant them that power. But the question is not whether the bureaucrats are right in the opinions. The question, as Michael Gillette famously put it, is whether unelected bureaucratic agencies should be able “to define the limits of their own power.” Historically, that is a job for the legislature and, when the law is vague, judges. But under Chevron, bureaucrats are given precisely the kind of arbitrary, prerogative power the Founders saw as inimical to liberty and the rule of law. As Charles Murray put it in his book By the People:

Chevron deference augments that characteristic of prerogative power by giving regulatory bureaucrats a pass available to no private citizen and to no other government officials — including the president and cabinet officers — who function outside the regulatory state. For everyone except officials of the regulatory state, judges do not defer to anything except the text of the law in question and the body of case law accompanying it.

The unifying theme here is what has been the central premise of progressivism for the last 100 years: It’s about power (See: Progressives & Power). When the Living Constitution yields the desired ends of progressives, the Living Constitution is a vital means. When the Living Constitution is inconvenient to those ends, we must bow down to the immutable and unchanging authority of super, super-duper, and supercalifragilisticexpialidocious precedents.

You can be sure that if the mystagogues of the administrative state had a Pauline conversion to minarchist libertarianism and started interpreting statutes in the most minimalist way possible, Senator Feinstein would start pounding the table about lawless bureaucrats. If judges started invoking the Living Constitution — informed by, say, new scientific insights into fetal pain — how quickly would liberals decry the lawlessness of constitutional evolutionary theory?

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