Bench Memos

The New “Genre of Psychological Fiction” About the Constitution

It is now commonplace on the Left to try to rebrand the discredited “living Constitution” approach. In addition to my recent 3part series on Geoffrey Stone’s and William Marshall’s joint effort, see, for example, my critique of Keeping Faith with the Constitution (co-authored by Goodwin Liu, Pamela Karlan, and Christopher Schroeder) and my fourpart exposé of Jack Balkin’s pseudo-originalist defense of Roe v. Wade.

Now available from the Claremont Review of Books is law professor John C. Eastman’s devastating review of Erwin Chemerinsky’s The Conservative Assault on the Constitution, “a partisan political diatribe, … complete with Orwellian doublespeak, gross hyperbole, and outright falsehood.” Here’s Eastman’s general assessment of what he aptly labels the new “genre of psychological fiction” about the Constitution:

A spate of recent books has tried to make the case for a living, evolving Constitution by arguing not that we have grown beyond the old constitutional norms, but that the founders themselves intended the document to be infinitely malleable, clay in the hands of a wise judiciary, to be formed to meet evolving standards of decency or to confront circumstances that the founders could not have imagined.… If you are having trouble discerning how the arguments advanced in these books differ from the original living constitutionalists’ explicit repudiation of the Constitution, you are not alone. According to their authors, the “living constitution,” crafted in the days of the Warren Court, was what the founders had intended all along. Apparently, the wise fathers of our nation intended nothing in our written Constitution to be binding except that nothing be binding. An interesting mix of fiction and psychoanalysis, to be sure, but hardly consistent with the evidence, as is clear to anyone who has spent even brief time toiling in the fields of the founders’ writings and debates.

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