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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