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Bench Memos

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Why Whelan Is Right about Liu



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I was surprised and disappointed by Richard Painter’s endorsement of Goodwin Liu. I see that Ed Whelan, Miguel Estrada, John Yoo, and Matthew Franck have done an excellent job of dissecting the large number of substantive errors in Painter’s analysis, and I recommend those entries to anyone who is tempted to take Painter’s piece seriously. Rather than duplicate that work, I want to make one point about Liu’s general approach to the Constitution. 

In this video, Liu discusses his book, Keeping Faith with the Constitution, and makes it clear that he is a fan of what I would call “the living constitution in a tuxedo.” According to Liu, “What we mean by fidelity is that the Constitution should be interpreted in ways that adapt its principles and its text to the challenges and conditions of our society in every succeeding generation. . . . Originalism and strict construction don’t really make a lot of sense,” and “the text can only get you so far,” because “the framers deliberately chose these broad words so that they would be adaptable to new challenges over time.”

Yes, the framers did choose broad language for some clauses of the Constitution. But they did not do so for the purpose of empowering judges to remake society along the lines of their personal political preferences, which is exactly what happens when you allow that judges should be basing their decisions on “the challenges and conditions of our society.” The truth is that Goodwin Liu’s judicial philosophy is rooted in a widely held belief that the Constitution is a stumbling block to the large-scale social and economic reform progressives want to engineer from Washington. If anyone doubts that I respectfully suggest that they pick up a copy of Keeping Faith and compare its substance with the writings of Progressive-era leaders like Woodrow Wilson and Roscoe Pound.

Liu tries to downplay how radical his views are by contrasting them to straw men. At his second confirmation hearing yesterday, he made the obvious point that he didn’t believe the text of the Constitution could be changed except by the amendment process. But no one was accusing him of changing the actual text — rather the liberal MO is to keep the words of the Constitution while stretching them to the point of meaning what they want. He returned several times to his example of Fourth Amendment search-and-seizure jurisprudence to illustrate proper constitutional development — the Founders could not have predicted, for example, whether cell-phone taps were constitutional searches. But applying tried and true constitutional tests to new technology is hardly the same thing as, say, determining that changing societal norms demand evolving constitutional conclusions on issues ranging from gun rights and abortion to same-sex marriage and the death penalty.

Finally, I want to say a few words in defense of Ed Whelan’s good name. Painter accuses him of demonizing Liu with posts “filled with polemic, caricature, and hyperbole,” and analogizes his work to what was done to Brandeis, Thomas, and Estrada. Anyone who has worked with Ed or followed his work on Bench Memos and at EPPC knows that he is extremely committed to factual accuracy, that he applies an exacting standard to any written work product bearing his name, and that he is willing to publicly correct himself. I don’t know what motivated Painter’s attack, but I think it is Painter who is guilty of “polemic, caricature, and hyperbole” in this case. 



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