Democratic senators claim not to have learned much from the recent confirmation hearings for (now) Chief Justice John Roberts. I, on the other hand, learned a lot by listening to those senators. An analysis of their rhetoric reveals trends in constitutional interpretation and evolution that are sure to influence the looming battle over the president’s second Supreme Court nominee.
Observation #1: Imitation is the Sincerest Form of Flattery
Judicial activism” has long been a label conservatives use to describe liberal court decisions that seemingly elevate judges’ personal views above statutory and constitutional law. The Roberts hearings confirm that the term has now become a favorite invective of Democrats. Senator Ted Kennedy accused Roberts of being an “aggressive activist.” Wisconsin’s senator Herb Kohl decried “judicial activists [who] have used [conservative judicial] philosophy to limit our rights and freedoms.” And Senator Chuck Schumer labeled Justices Scalia and Thomas as “activist judges” on par with liberal luminary justices Marshall and Brennan.
Many of my right-of-center colleagues found it maddening to watch those senators borrow the judicial activism charge and use it against conservative paragons of judicial restraint. But it’s unlikely the Democrats are fooling anybody. Their real concern is that Roberts won’t be activist enough to see the constitutional penumbras and emanations that support Roe v. Wade and, perhaps, a constitutional right to gay marriage.
Democrats’ appropriation of the activist allegation should be viewed as evidence that proponents of judicial restraint are making headway. It is an implicit admission that this critique of liberal jurisprudence has proved effective. Moreover, the Democrats’ reliance on a “so are you” argument indicates the absence of a defensible judicial philosophy on the Left. And, like former segregationists embracing civil rights, liberals’ calls for judicial restraint–no matter how insincere–are a sign that the times have changed for the better.
Observation #2: Living Constitution Dead at 70?
Closely related to judicial activism is the concept of a “living Constitution,” one whose principles and interpretations evolve to reflect the changing values of society. While liberals have traditionally embraced the living Constitution, conservative legal thinkers abhor it. They see it as nothing more than an excuse for judges inventing law–like the Supreme Court’s Miranda warnings and the “right to define one’s own concept of existence, of meaning, [and] of the universe.”
Given the dependence of the liberal judicial agenda on a living Constitution, it is telling that the term and its equivalents were used only once by a Democratic senator during the Judiciary Committee’s five days of hearings and voting. Dahlia Lithwick of Slate reports a similar abandonment in the literature. One can only conclude that liberals now feel the need to distance themselves from the concept. Deprived of the unabashed support of its biggest fans, the living Constitution’s best days are likely behind it.
May the living Constitution rest in peace. The concept is utterly without meaning as a legal standard and, instead, is a recipe for unrestrained judicial power. Because the Constitution is a contract between the people and their government, its modification should require the consent of the parties to the agreement. Thus, a living Constitution can be analogized to an automobile lease agreement that the car dealer feels free to modify as his notions of a fair deal evolve.
Observation #3: Don’t Say the “A” Word
The classic defense of the living Constitution is that the Framers could not peer 200 years into the future. But the Framers were well aware of that limitation. Thus, they provided us with a democratic method of constitutional evolution, the amendment process, which has proved to be brilliantly effective. Constitutional amendments are responsible for the greatest achievements of our legal system in the nineteenth and twentieth centuries, including the elimination of slavery and the enfranchisement of African Americans and women.
And yet, throughout the Judiciary Committee’s proceedings, not a single senator discussed the amendment process except to say that that it was difficult or should be infrequent. This inattention to the Framers’ intended method of constitutional evolution is paralleled by the period since 1971, during which there has not been a single substantive constitutional amendment. Compare that to the previous hundred years, which saw about a dozen pivotal amendments.
The Amendment process–requiring approval by two-thirds of Congress and three-fourths of the states–is an arduous one, as the Framers intended. But that cannot fully explain senators’ disinterest in it. After all, the process is no more difficult than in the heyday of constitutional amendments, and more than 80 percent of the amendments that have been approved by Congress have also been ratified by the states.
The real answer lies in the ascendancy, in recent decades, of a tempting alternative to constitutional amendments, namely the living Constitution and judicial activism. In this age of quick fixes, the amendment process is viewed as too cumbersome by politicians and impatient interest groups. Most significantly, amendments require a solid democratic consensus. That makes them unattractive to the intellectual elite–in Congress, the courts, law schools, and think tanks–whose “evolving values” are often out of sync with those of the larger populace. A living Constitution is seductive exactly because it is undemocratic.
But the tide may have turned. The rhetoric of the Roberts hearings suggests that the political viability of judicial activism is waning. Renewed attention to constitutional amendments cannot be far behind. The battle for a humbler approach to the Constitution is hardly over, but the signs are encouraging.
–Curt. Levey, an attorney specializing in constitutional law and civil rights, was the director of legal and public Affairs at the Center for Individual Rights from 1998 to 2004.