Sandra Day O’Connor was almost squished last weekend in Philadelphia. At an event celebrating our living Constitution or some such nonsense, a giant beam from the stage almost fell on her. It was a scary moment. For a brief blinking instant it appeared as if Sandra Day O’Connor was headed to meet her Maker. And, if that happened, the Constitution as we know it would have died.
As Charles Krauthammer and others have noted, Sandy Baby (as John Riggins once dubbed her) is the Constitution of the United States of America. If she wants the text to mean free speech for everybody, then free speech for everybody it is. If she wants it to mean censorship for everybody, well shut my mouth!
This would annoy me less if she at least made more facial expressions when she rearranged the meaning of the ink particles on that old piece of parchment. Wouldn’t it be much cooler if she at least blinked like Barbara Eden in I Dream of Jeannie every time she pulled a new emanating penumbra from the Constitution?
And maybe for the really hard cases she could make that super-sweaty constipated face the skull-bursting telepaths in Scanners made. Not only would this show how she’s in the business of brainwashing the public, Justice Scalia’s head might actually explode the next time the Supreme Court declares that the Constitution demands that America must be a Very Nice Country as defined by New York Times editorial writers and various college administrators.
As it is now, poor Nino Scalia is already fast becoming the judicial equivalent of John Belushi in one of his old Saturday Night Live news rants about the Irish or whatnot. Whenever Justice Kennedy starts explaining that the Founding Fathers intended for each and every American citizen to be able to don his own constitutional Dr. Strange cloak and fly around the astral plane in search of his own personal definition of “me,” Scalia starts herking-and-jerking like Belushi until he rhetorically flings himself to the floor. The Scanners thing would simply add a nice Monty Pythonesque “boom-splat!” to fully punctuate Justice Scalia’s cranial dissent.
Now, of course, I don’t actually want any harm to befall Justice O’Connor and I would be truly dismayed if Justice Scalia’s head exploded. And, yes, I’m exaggerating when I say Justice O’Connor can single-handedly (single-mindedly) make the American charter mean whatever she wants, but we really do need something dramatic to signal to the public that the Supreme Court is pretty much making stuff up as it goes.
OUR “LIVING CONSTITUTION”
I’m not going to spend a lot of time on the concept of a “living Constitution” because most of the people who care about such issues already know what the term means and implies. But just in case you’re not up to speed, I’ll be brief. A “living” Constitution grows and changes with the times. Generally speaking, liberals want a living Constitution and conservatives don’t. Justice Scalia has summed up the Right’s basic position succinctly. “The Constitution is not an organism. It is a legal document.” Equally succinct, George W. Bush explained during the 2000 campaign that he likes judges like Scalia and Clarence Thomas.
Meanwhile Al Gore also explained what kind of justices he’d like on the Court: “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.”
I have three problems with the concept of a “living Constitution.” The first is literal. It’s simply not true that the thing is alive. The Constitution meets none of the criteria put forward by biologists as indicating life. This may seem like a stupid point, indeed it is a stupid point, except insofar as it underscores the fact that “the living Constitution” is a metaphor and in our society we don’t question our metaphors nearly enough, but we can save that diatribe for another column.
Then there’s the most commonly voiced objection. A Constitution which changes with the times will inevitably mean that the Constitution only means whatever a handful of “robed masters” say it means at any given time. Not only is this dangerous, for all the obvious reasons, it’s not even honest. Indeed, the fundamental deception of the liberal campaign to breathe new life into the Constitution with every generation is the implied suggestion that these changes are democratic in some vague way. The idea seems to be that if the text changes with the generations it must reflect the attitudes of those generations. Unfortunately, that’s not really true. The fact is that the Court rarely reflects popular opinion so much as elite opinion. And it almost never reflects popular opinion when the pro-”living Constitution” crowd calls the justices “heroic.” For example, the Court recently upheld racial preferences even though a large majority of Americans consistently oppose them. The Court based its ruling not on what Americans want but on what it thinks Americans need: Diversity is good for whites; preferences are good for blacks; it’s all-good for America.
And, once you realize that the Court is not changing with the generations so much as changing with whatever is fashionable in elite society in Washington and New York, it becomes clear that the people who celebrate the idea of a “living Constitution” don’t really want the Court to follow the people, they want it to lead or, if need be, command the people. As Judge Robert Bork noted in The Tempting of America, “The abandonment of original understanding in modern times means the transportation into the Constitution of the principles of a liberal culture that cannot achieve those results democratically.”
THE CONSTITUTION MUST DIE
So if you don’t want a living Constitution, you can almost hear Phil Donahue asking, do you want a dead Constitution instead? And the answer is, yes, of course, I want a dead Constitution.
Now I certainly don’t mean dead in merely the biological, i.e. literal, sense. And while I agree entirely with the complaints from the likes of Judge Bork and Justice Scalia, I don’t mean dead in the sense of “not living.” Indeed, Justice Scalia has expressly rejected the phrase “dead Constitution” preferring — perhaps for public-relations reasons — the more felicitous phrase “enduring Constitution.”
But I prefer a dead Constitution.
The largest political constituency with the smallest number of advocates are not the unborn, or blacks, or Indians, or the mentally handicapped. It is not Christian white men or lesbian brown women. It’s not even the “future generations” who, we are constantly told, will have to pay for our deficits or for the retirement of the baby boomers. No, the group whose priorities are given the least attention are those of the dead.
This isn’t Swiftian sarcasm or winking irony. I’m quite serious about this. Chesterton’s defense of the power of tradition is probably the most famous take on this idea (though, it should be noted, he’s rewriting Burke’s ideas). “Tradition means giving a vote to most obscure of all classes, our ancestors. It is the democracy of the dead.” He continued, “Tradition refuses to submit to the small and arrogant oligarchy of those who merely happen to be walking about. All democrats object to men being disqualified by the accident of birth; tradition objects to their being disqualified by the accident of death. Democracy tells us not to neglect a good man’s opinion, even if he is our groom; tradition asks us not to neglect a good man’s opinion, even if he is our father.”
I love that stuff. But if you think it’s a bit too airy, there’s a more concrete argument for not merely listening to the wisdom of our ancestors, but actually following their rules. Imagine trying to play baseball if the players could change the rules during the game. The umps or the players or the coaches or the fans or some combination of them could simply decide — nay vote! — that the batter doesn’t have to hit the ball before running to first base. And another vote determines that running to first base at all is no longer required of players. The might decide that the whole concept of “players” is needlessly restrictive. Suddenly, the Yankees could put 300 people on the field at any time. It doesn’t take a rocket scientist or even George Steinbrenner to understand that if the rules aren’t agreed to beforehand, the freedom to play the game won’t exist because the game itself will cease to exist.
Stephen Holmes makes this point in his brilliant book Passions and Constraint: On the Theory of Liberal Democracy (which I just started reading). Holmes examines the paradox of what he calls “precommitment.” As with the agreed-upon rules for baseball, democracies like ours deny our citizens and our elected leaders the ability to make certain decisions. When the system is working properly no branch of government can willingly violate the Constitution.
Now, if you’re one of these democracy fanatics who thinks it’s always better to be ruled by a democratic majority of devils rather than an authoritarian minority of angels — never mind dead angels — this sort of thing should drive you nuts. They ask, Why should a bunch of dead men decide what the living can or cannot do?
The answer is that pre-committing to a bunch of rules generations ahead of time doesn’t limit democracy, it makes democracy possible. “Precommitment is justified,” says Holmes, “because it does not enslave but rather enfranchises future generations.” If we left every rule of the game up to the living, the living could throw the rules out in a fit of passion or a bout of dull stupidity. We have freedom of worship today not because we put it up to a vote, but because our forefathers agreed that this was the way the game would be played. There have been plenty of times when rights to free worship, free speech, and free assembly could have been voted out of existence if we left such questions up to the people or their representatives. As Alan Wolfe put it in his review of Holmes’s book a few years ago, “Constitutional rules are like grammatical rules; they circumscribe, to be sure, but in so doing they make it possible for a people to express themselves.”
This illuminates two political points worth making: First, we hear a great deal about how conservatives are now advocates of “judicial activism.” Sometimes this is fair criticism, but it is also often less hypocritical than liberals believe. One can be a judicial activist and still be opposed to a living Constitution. If you believe the country has walked too far down the wrong road, it’s not activism to turn around and walk back to the fork in the road to find the right path.
Second, it reveals why amending the Constitution is so much less pernicious than redefining the existing words. Amending the Constitution is hard because the Founders rightly wanted it that way. Making it a slow and difficult process — often taking years or even generations — not only guaranteed that only the most important changes would be considered as binding precommitments for future generations. It ensured that any proposed changes would be debated and argued over by just about everyone over a sufficient period of time so as to make certain that everyone thought about the lasting repercussions for generations to come. In other words, the Founders designed the amendment process to make us all wear the hat of a Founding Father. But when the Court simply redefines the existing words to mean whatever the majority wants, the Constitution is not longer about precommitting future generations to agreed-upon rules, it’s about rank power in the here and now. You may not weep over the fact that this nullifies our ancestors efforts to set the rules of the game. But I hope it bothers you that the rules of the game are still being changed and you have almost no say in what kind of Constitution your descendents will live under. That is unless your name is Sandra Day O’Connor. In that case, you deserve to be congratulated because you’re the Founding Mother of my child’s Constitution.