Strictly Speaking

Slate readers pull the plug on the living Constitution.

Well, wow.

Your mail is coming in faster than I can hit the “reload” key, and it is, without a single exception, fantastically thoughtful and interesting. What’s going on in the Fray is just as terrific. It’s heartening to see that even on the doggiest days of August, we can be intensely anxious about how we govern ourselves.

That said, one unmistakable trend should be noted in today’s mail from defenders of Originalism: Many of the letters are decidedly angry in tone and bespeak a real sense of betrayal. Yesterday’s letters—defending a living Constitution—were largely wry and pragmatic, whereas many of today’s are quite urgent and frustrated. Readers on both sides often agree that the problem with the “living Constitution” isn’t so much doctrinal as strategic. Brennan’s Constitution was so full of life, it got up and danced across the country. Or to quote Fray poster Shrieking Violet: “I think the two key reasons why the ‘Living Constitution’ model is so rarely defended these days are because (a) The liberal courts made such a hash of the idea back in the 1970s when federal judges were going to such extremes as to dictate school bus routes, and (b) Because the conservatives have been loudly and aggressively milking the backlash against such extreme forms of judicial activism for nearly 30 years.”

I asked a few pointed questions at the end of yesterday’s post; mostly I asked readers who support the notion of a non-evolving Constitution to separate their anxiety about unconstrained liberal judges from their criticism of a “living Constitution.” Here are some of your best responses:

What To Do With Brown v. Board?
Heaps of mail made the point that Brown could have been readily decided in a manner consistent with the Constitution. Mark Edens argues that the Brown decision is perfectly consistent with the objective of the 14th Amendment, and that, in fact, “[i]t was Plessy v. Ferguson, the earlier ruling allowing segregation that Brown overturned, that could serve as an example of ‘living Constitution’ judicial activism. The same can be said of the Dred Scott decision, a point President Bush tried to make, with astonishing awkwardness, in one of the Presidential debates.” Several of you suggested that Brown was the right result, but for the wrong reasons—that Brown represented a brave court carrying water for a gutless legislature. Says Tim Button: “The Warren court bailed out the legislature with Brown. This was sensible, and maybe even necessary. Maybe we needed a tyrant at that moment. But maybe the legislature would have got there. Now the legislature is spoiled. It no longer had to be sensible, because the court continues to tidy up after it.”

Out-of-Work Judges?
Offers Steven Ehrbar: “What role is there left for judges with a dead Constitution? Something like 95% of the work the current judicial system does, like applying statutes to unforeseen circumstances, resolving ambiguities, striking down legislation even a Congressman should have realized in advance was unconstitutional, and the like. Oh, the job of the Supreme Court will get a lot more boring, and the Circuit courts somewhat more so, but the work that does not regularly make headlines will still be there.”

A Living Constitution Is Just Politics in Sheep’s Clothing
From Ryan Bell: “Ask your readers—do you support a judge’s right to read invisible rights into the constitution regardless of whether you think those rights are there? Would all accept a penumbra that protects concealed weapons carriers just as they accept the penumbra of reproductive rights? If not, how is this any different than just tussling over policy? I submit that in such a case a constitution is more than useless. It’s a curtain behind which to hide while churning out new sausages. And I don’t even care about how mixed up that last metaphor is. It’s a living language.”

Amend It, Don’t Bend It
Many readers suggest that it’s wrong for the constitution to “live” in any fashion beyond the amendment process. Nicholas Trombetta observes that if we’re too apathetic to amend it, it’s our own darn fault if the law becomes irrelevant: “Isn’t it telling that here we are in a state of political stagnation and zero-sum vitriol and our last non-procedural amendment is more than a generation old? … If the people are not engaged, then they are alienated by default.”

The Shoe-on-the-Other-Foot Test
Osvaldo Vazquez, a self-described “pretty liberal guy” offers this thought: “My worries are that, if you look at the number of judges that Bush has appointed, coupled with the complete inability of Democrats to win a presidential election these days, you end up with a living Constitution in the hands of very conservative people. We’ll be back to Lochner in no time.”

We Don’t Need Protection From Majority Tyranny
A great letter from Dan Simon  says that those of us agitating for a judiciary to protect minorities aren’t giving true democracy a fair shot: “In discussing this topic with numerous Americans of all—and I really mean all—social, economic and political stripes, I never fail to hear arguments that would not be out of place in the mouth of a nineteenth-century European aristocrat: our system isn’t purely democratic, with good reason; our form of government fortunately protects our rights and prerogatives from violation by an unjust majority; pure democracy can’t possibly work—after all, the majority could suddenly decide to (insert your favorite horrible crime against humanity here); we therefore need ‘checks and balances’ to avoid a tyranny of the majority.’ “

Time for a New Constitutional Convention?
This suggestion popped up more than once. Here is Nick Passe: “What is the solution? There should be some sort of a grand deal whereby the major shifts in public policy since the 1930s (redistribution/social insurance, nondiscrimination along with severe limitations on freedom of association, administrative state, the elimination of the freedom of contract) are all incorporated into one huge constitutional amendment or several small ones and that from beyond a certain date 5 or 10 years out, the Constitution will mean what it actually says.”

You’ve probably noticed by now that I haven’t cited the political philosophers or law professors who have made it their life’s work to answer these same questions. Mostly that’s because I didn’t want your e-mails to begin (as many did anyway) “Now, I’m no great constitutional scholar but …” At any rate, a good many actual constitutional scholars have written some terrific things on the subject so I want to feature some next week. They have a tough act to follow.


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