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Bench Memos

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It’s Alive! It’s Alive!!



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Earlier in the day, Shannen Coffin started an interesting exchange on The Corner (start here first, then go here second, third, fourth, fifth, and sixth) about Mike Huckabee’s use of the phrase “living, breathing Constitution” in a CNN interview this morning.  I’m no Huckabee man, but I think Shannen has made a mountain out of a molehill.  If you watch the CNN interview, Huckabee uses the expression “living, breathing Constitution” in a perfectly unobjectionable way.  Shannen doesn’t really criticize Huck for using it with the usual “let’s persuade judges to update that retrograde Constitution” meaning–indeed he recognizes that Huckabee wants to amend the Constitution using Article V rather than judicial activists to do so–and so his criticism really boils down to complaining that the candidate used an expression that “belongs” to the political left in this country and ought to have known better. 

In one of his posts, Shannen quotes a sensible statement rejecting judicial activism from one of Huckabee’s position papers; then notes that candidates seldom write (and may not always even read) such releases from their own campaigns; then praises the position paper for being superior to the “looser” language Huck used on TV (but who is not more careful in writing than in speech?); and concludes by wondering aloud how such a “silly concept” as a “living, breathing Constitution” got into Huck’s head.  Earlier Shannen suggested that it showed Huckabee “has never engaged on the broader legal and political debates on the Constitution,” but how many candidates in any election year, ever, have been active participants in constitutional debates?  At best we usually expect presidents to hire people who have been in the thick of these controversies.  Not one candidate running today in either party is a veteran of constitutional debate on these matters–no, not even the senators, whose attention to these things is sporadic and amateur at best.

Before ”living Constitution” became the slogan of the activist left and the bête noir of the originalist right, it was once quite normal for people to use language like this to point out, correctly, that the Constitution was written in broad terms that make it adaptable to the circumstances of each age.  As Chief Justice John Marshall pointed out in McCulloch v. Maryland in 1819, it is “intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.”  The questions are, a) who is doing the adapting, and b) what form does the adaptation take?  When copyright protections–rooted in an enumerated power referring to “writings” in Article I, § 8–were extended by Congress to musical recordings and motion pictures, among other things, Congress was “adapting” the terms of the Constitution in a perfectly sensible way.  It was, if you will, treating it as a “living, breathing” document, fit for government in any age.  When, on the other hand, the Supreme Court decided that the due process clause of the 14th Amendment protected a positive right of women to procure abortions from willing physicians, it was altering the Constitution to say, as Swift’s Houyhnhnms would put it, “the thing which is not.”

In context it’s clear that Huckabee’s remark was innocuous.  Indeed, he didn’t even mean anything about legislative adaptation of an 18th-century constitution to modern conditions.  He was talking about amending the Constitution because it’s a “living, breathing” one and we want to keep it that way rather than let the judges kill it stone dead.  In a truly lame criticism, though, rival Fred Thompson said today: “Now I know Governor Huckabee was talking about amending the Constitution, but I don’t think he understood that he was using code words that support judicial activism.”

Ah. I get it.  When a man’s meaning is utterly limpid, he may still be attacked by his rivals for casually using a phrase that has been aggressively appropriated by his political opponents to mean the opposite thing–and so he is guilty of using “code words that support” a position he manifestly does not support.  Riiight.



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