Why Judges Matter

Jonah Goldberg's got a great take on the coming judicial confirmation battles, and why they matter, as he discusses the battle between those advocates of the so-called living Constitution and we conservatives who prefer the "dead" Constitution...

We’ve all heard about how great living constitutions are. The most extreme, but essentially representative, version of this “philosophy” can be found from the likes of Mary Frances Berry or the Los Angeles Times’s Robert Scheer. They matter-of-factly claim that without a “living” constitution, slavery and other such evils would still be constitutional. This is what leading constitutional legal theorists call “stupid.” The constitutionality of slavery, women’s suffrage and the like were decided by these things called the 13th, 14th and 15th Amendments. Also, contra feminists, women got the vote not through a living constitution but by the mere expansion of the dead one — via the 19th Amendment.

This is not to say the “living constitution” is a myth. “It’s alive!” all right, as Dr. Frankenstein might say. Supreme Court justices have found the most interesting things swimming in the penumbras and emanations of the U.S. Constitution. The point is merely that it is batty to argue that constitutional change is impossible unless we view the Constitution as a completely viable life outside the womb of historical context and principled meaning.

The more reasonable arguments for a living constitution revolve around the view that society is changing too fast and the Constitution-as-written must grow to stay relevant. Al Gore said in 2000, “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.”

And it’s obviously true that the Founders never envisioned a world of embryonic stem cells or retinal-scan cat doors (coming soon!). And there are good answers for what the Supreme Court should do when the Constitution is truly silent on an issue. For example: It should stay silent.

But the problem here is that these arguments are all on the opposition’s turf. Conservatives aren’t merely anti-living Constitution — we are pro-dead Constitution. In order for us to live in freedom, the Constitution must die (Faster, Federalist Society! Kill! Kill!).

The case for dead constitutions is simple. They bind us to a set of rules for everybody. Recall the recent debate about the filibuster. The most powerful argument the Democrats could muster was that if you get rid of the traditional right of the minority in the Senate to bollix up the works, the Democrats will deny that right to Republicans the next time they’re in the majority (shudder).

The Constitution works on a similar principle, as does the rule of law. Political scientists call this “precommitment.” Having a set of rules with a fixed (i.e., dead, unliving, etc.) meaning ensures that future generations will be protected from judges or politicians who’d like to rule arbitrarily. This is what Chesterton was getting at when he called tradition “democracy for the dead.” We all like to believe that we have some say about what this country will be like for our children and grandchildren. A “living Constitution” denies us our voice in this regard because it basically holds that whatever decisions we make — including the 13th, 14th, and 15th Amendments — can be thrown out by any five dyspeptic justices on the Supreme Court. In other words, the justices who claim the Constitution is a wild card didn’t take their oath to uphold and defend the Constitution in good faith because they couldn’t know what they were swearing to.

“What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority,” Justice Scalia wrote this week, “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.”

Scalia's quote is a brilliant summation of where the problems lie today in the realm of Constitutional law. The Court's split in the Ten Commandments cases made so little sense that Scrappleface may have the best take on it. There's terrific analysis at Volokh by Todd Zywicki and Eugene Volokh himself. Both analyze the issue of whether these decisions actually engender divisiveness rather than preventing it, and this passage from Volokh made a lot of sense...

The opinions joined in these cases by Justices Stevens, O'Connor, Souter, Ginsburg, and Breyer routinely stress that Ten Commandments displays and the like often threaten to produce "religious divisiveness," and that the Establishment Clause should be read as making such divisiveness into a reason for invalidating (at least some) government actions. Past Supreme Court cases have made similar claims.

But I wonder: What has caused more religious divisiveness in the last 35 years -- (1) government displays or presentations of the Ten Commandments, creches, graduation prayers, and the like, or (2) the Supreme Court's decisions striking down such actions?

My sense is that it's the latter, and by a lot: All these decisions have caused a tremendous amount of resentment among many (though of course not all) members of the more intensely religious denominations. And the resentment has been aimed not just at the Justices but at what many people see as secular elites defined by their attitudes on religious matter. The resentment is thus a form of religious division, and I've seen more evidence of that than I have of religious division caused simply (i.e., setting aside the litigation-caused division) by the presence of Ten Commandments displays, creches, or even graduation prayers.

Isn't there something strange about a jurisprudence that in seeking to avoid a problem (religious divisveness) causes more of the same problem, repeatedly, foreseeably, and, as best I can tell, with no end in sight?

There should be a retirement (or two) this week. Stay tuned.