Bench Memos

Law & the Courts

The Intellectual Vacuity of “Living Constitutionalism”

Maybe it’s too much to ask Justice Ginsburg to try to fake impartiality. After all, the “living Constitution” approach that she and four other justices (Kennedy, Breyer, Sotomayor and Kagan) embrace is, at bottom, nothing more than an invitation to justices to indulge their own policy preferences and to entrench those policy preferences in the form of newfound constitutional rights.

Proponents of the “living Constitution” claim that their approach is necessary in order to adapt our country to changing circumstances. But their claim ignores the broad play that the Constitution, properly understood, gives to the democratic processes to adapt policies to new conditions. And, by entrenching the current justices’ policy preferences in the Constitution, the “living Constitution” approach deprives future generations of the very adaptability that it vaunts. That’s especially so when living constitutionalism is bolstered by the myth of judicial supremacy: in combination, they claim that the Constitution acquires whatever novel and changing meanings that five living-constitutionalist justices choose to impose on it and that elected officials and American citizens must acquiesce in being governed by those judicially imposed meanings.

For an illustration of the radical instability of the “living Constitution” approach, consider:

In 1972, in Baker v. Nelson, the Supreme Court summarily dismissed an appeal claiming that a state’s definition of marriage as the union of a man and a woman violated the federal Constitution. In dismissing the appeal “for want of a substantial federal question,” the Court was ruling that the claim was so clearly devoid of merit that there was no point in bothering with briefing and oral argument. The Court’s action in Baker, it’s worth noting, came a mere five years after its landmark ruling in Loving v. Virginia striking down laws against interracial marriage—the ruling now presented as the supposed paradigm for a constitutional right to SSM. The Baker Court included some of the most aggressively left-wing justices ever—William O. Douglas, William Brennan, and Thurgood Marshall—but none of them registered a peep of dissent from the Court’s order.

As recently as a few years ago, the idea that anyone might read the Constitution to override state marriage laws was so fringe that Elena Kagan, during her confirmation process for her nomination as solicitor general, brazenly dissembled. “There is no federal constitutional right to same-sex marriage,” she testified (see point 1 here).

To be sure, the Supreme Court’s very confused ruling against the federal Defense of Marriage Act in Windsor v. United States in June 2013 was sufficiently indeterminate to permit (even as it surely did not compel) a wave of rulings against state marriage laws. Even then, it wasn’t until just a few months ago—in October 2014—that Barack Obama, the most left-wing president in American history, stated that he now believes that the Constitution prohibits state laws that define marriage as the union of a man and a woman. (He had flipped his professed policy position on marriage back in 2012.)

Yet suddenly the position that the Fourteenth Amendment should be deemed to have a radically different meaning than the Court recognized it had in 1972 (and than its original meaning could plausibly support) is taken by Ginsburg to be so obvious that she believes that she and four of her colleagues need not even wait for briefing and oral argument for her to forecast their ruling.

(Lest I be misunderstood: I of course recognize that developments in the intervening decades might well affect how Americans view the policy question of how marriage should be defined. I don’t see why they should have any impact on the constitutional question.)

As Steven Menashi has nicely put it, “living constitutionalists aim to establish not a ‘living’ but a zombie Constitution; they want to take the corpse of constitutional text and reanimate it with new principles in every generation.” No citizen worthy of self-government should accept the fraud of the “living Constitution”—or the myth of judicial supremacy that abets the fraud. 


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