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Bench Memos

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Now You See It, Now You Don’t



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That’s a smart, smart column by Jonah Goldberg today about how the Left can turn the notion of a “living Constitution” on and off at will, endorsing a Constitution “made of flubber” when it suits them, then piously quoting those dead white guys who founded the country when they think that is more useful.

I would just add that the sudden appearance of politically convenient (though usually poorly made) originalist arguments, from people who ordinarily reject originalism, is not altogether a new thing with the recent flap over the NSA surveillance. We saw it in 1998-99 during the Clinton impeachment, remember? “The founders never envisioned the removal of a president from office over his personal indiscretions,” and so forth. And then we saw it again after the Supreme Court decided Bush v. Gore, when countless legal scholars suddenly discovered both originalism and the doctrine of judicial restraint, and professed their astonishment that the Court should intervene in the recount controversy.

No need to fight those fights over again. But apropos of Jonah’s point about the inconsistency of the Left on this matter, we can state a simple test this way: anyone who defends Roe v. Wade in any way, shape, or form as an appropriate use of judicial power, has no standing to complain about anyone’s constitutional argument on any question. Blab about whether you like this or that political outcome all you want, but don’t try to convince us that you are actually interested in the integrity of constitutional reasoning.



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