Law & the Courts

The Imaginary Constitution

Protest banner at the Women’s March on Washington, January 21, 2017. (Lucas Jackson/Reuters)
Political questions should be resolved by the ballot box, not by a ‘living’ Constitution that means anything leftists want.

The era of the Supreme Court serving as progressivism’s fairy godmother should have ended long ago. Taken together, Presidents Richard Nixon, Gerald Ford, Ronald Reagan, and George H. W. Bush appointed ten consecutive Supreme Court justices. (Jimmy Carter, the only Democratic president elected between 1968 and 1992, appointed none.) Yet what the Left could not win at the ballot box it won in the high court, again and again and again. It did this by a tremendously successful propaganda effort to reframe the Constitution as a “living Constitution.” Let’s give it a more accurate name: the Imaginary Constitution.

The actual Constitution is a source of frustration and vexation to progressives because it does not mandate the things they want to require, while it does grant clear and unmistakable protection to things they actively hate (guns) or desire strongly to restrict (speech). Their solution, going back decades, is simply to promulgate an Imaginary Constitution more to their liking. When Senator Kamala Harris says, as she did on MSNBC, that should President Trump appoint another originalist to replace Justice Kennedy, “we’re looking at a destruction of the Constitution of the United States,” it makes sense only if you understand that she’s not talking about the actual Constitution. She’s talking about the Imaginary Constitution.

Many of those ten Republican Supreme Court appointees got swept up in the mass delusion. In the Imaginary Constitution dreamed up by progressives, with all of its enticing penumbrae of doubt and mystery, there is an established right to privacy, which somehow means the right to an abortion. In the Imaginary Constitution, the First Amendment concludes with the parenthetical phrase “(except for hate speech and political speech funded by corporations).” In the Imaginary Constitution the phrase “a well-regulated militia” doesn’t simply explain why the right to bear arms is necessary; it’s meant to give government the power to remove that right by excluding citizens from a militia in the first place.

A genuinely conservative Supreme Court would not inspire breathless anticipation about what Abu Ghraib–level torturing of logic it might unveil each June or early July.

The Supreme Court has been a telenovela-style source of intrigue and excitement going back to Roe v. Wade and then some. What nutty logic would Harry Blackmun indulge in? How would Justice O’Connor’s simpering urge to please everybody play out? Which side did Justice Kennedy feel was being bullied? Awaiting the end-of-term decisions each summer became a magical mystery tour, each year adding another dazzling new episode of fantasy and drama. Perhaps the Supremes would tell us that a requirement to purchase health insurance was instead a “tax.” Maybe preferential treatment on the basis of race is unconstitutional if you call it a “quota” but constitutional if you call it “enhancing diversity.” Maybe gay marriage is “deeply rooted in this Nation’s history and tradition” and is thus guaranteed by the due-process clause. The end-of-term shenanigans took on the same implied motto that the New York State lottery used to employ: Hey, you never know.

If a silly season that has lasted longer than the Punic Wars is going to end (and I’m not saying it will, merely that it might), then the Supreme Court would revert to being boring and predictable. A genuinely conservative Supreme Court would not inspire breathless anticipation about what Abu Ghraib–level torturing of logic it might unveil each June or early July, because few questions that come before it are particularly ambiguous. Of course the First Amendment means that the state cannot compel speech. There should have been no suspense attached to this question. Of course the Constitution contains no clause saying, “Allowable with any president except Trump.”

Gay marriage was being adopted swiftly, in state after state — 36 of them passed it between 2004 and mid 2015. There was no need for Kennedy to cite the Imaginary Constitution in defense of it.

The Constitution is brief — 7,500 words, about the same length as the Apple Media Services Terms and Conditions agreement you ignore, and much more readable — hence it leaves most questions up to the people. The Germans call their constitution das grundgesetz — the basic law. Many of the mystical qualities that have attached to the Constitution would be stripped away if Americans thought of it as merely the basic law, upon which any number of new stories can be built.

If the Constitution is simply silent on gay marriage and abortion, that doesn’t mean these two acts should not be guaranteed by law. Gay marriage was indeed being adopted swiftly, in state after state — 36 of them passed it between 2004 and mid 2015. I was in favor of that change and the concomitant surge of tolerance for homosexuality in general. There was no need for Justice Kennedy to cite the Imaginary Constitution in defense of gay marriage. If abortion is something Americans feel should be legal, then Americans can so direct, through their elected representatives. It does not follow that the demise of Roe (which I do not foresee anyway) will bring about the end of legal abortion. And should we ever reach a post-Roe era, candidates proposing laws guaranteeing abortion access would prove powerful motivators for Democratic voters. Abortion, being unmentioned in the actual Constitution, is a political question, and as such should be dealt with via the political process. If abortion is as popular as Democrats claim, they ought not fear this.

The editorialists at the New York Times thundered that Kennedy’s retirement is so “crushing” that it

sends a stark message to the tens of millions of Americans who have long turned to the court for the vindication of many of their most cherished rights and protections: Look somewhere else. That place is the ballot box. So show up and vote.

To tighten up that verbiage, the “stark message” the Times wants to send is “vote.” Is that supposed to sound scary? What is “stark” about voting? Voting is how we are supposed to resolve things. Voting — for a Republican Senate, for a Republican president — is in fact how we got to the point where the Supreme Court might actually turn boringly constitutionalist. If that happens, responsibility for deciding most issues would go right back where it belongs: the people. The Democrats tell us they’re the party of the people. If so, they have little to fear.

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