Bench Memos

More on the Living Constitutionalists’ ‘Pledge’

I have a few points to add to Ed’s excellent commentary concerning the Constitutional Accountability Center’s new “Whole Constitution Pledge.”

1. The pledge and the coordinated media strategy behind it are advancing nothing more than living constitutionalism in a tuxedo. It is a transparent effort to put logically unsustainable and unpopular constitutional theories on better rhetorical footing. The CAC is run by a same-old-same-old cast of characters who have promoted liberal judicial activism. CAC board member Fred Epstein has a long history with the ACLU and, according to his bio, “spent the first five years of his retirement career working for [Soros’s] Open Society Institute.” CAC press secretary Doug Pennington was assistant director of communications for the Brady Campaign and claims he advised the gun-control movement on the “media strategy around the landmark Second Amendment cases District of Columbia v. Heller and McDonald v. City of Chicago.” Judith Schaeffer, CAC’s vice president, was formerly “Legal Director of People For the American Way, where she focused on constitutional and civil rights issues, federal and state legislative activity, and judicial nominations.”

2. Better PR strategy won’t help supporters of liberal judicial activism erase an intellectual heritage of hostility to the Constitution. As Ed already noted, legal progressives have always been skeptical of the inefficiency created by a written constitution that enumerates the federal government’s limited powers and then divides them vertically (between the states and the national government) and horizontally (within the federal government). It won’t matter how many pledges they promote, they will still have to deal with the fact that it was Woodrow Wilson — a leading progressive thinker, last I checked — who complained that “the makers of our Federal Constitution read Montesquieu with true scientific enthusiasm” and established an outdated system that would “exist and move by virtue of the efficacy of ‘checks and balances.’” And that’s just one example. There are countless others. 

3. Finally, I’m not sure exactly what these folks are pledging to do. Are they living constitutionalists pledging fealty to the Constitution on the day they sign the pledge? Or some future Constitution the exact substance of which they don’t even know when they sign the pledge? Is each person pledging to their own Constitution which just doesn’t change to them? Unless, of course, they are all pledging to a Constitution that actually has a definite, knowable, unchanging substance — in which case I look forward to joining them in celebration of Justice Thomas and Justice Scalia’s service at the next Federalist Society convention.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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