Bench Memos

Re: Dorf’s “Nobody Here But Us Chickens”

Ed, let me add a word or two to your post below.

Not only did Dorf clerk for Reinhardt, he clerked as well for Justice Kennedy, in the very term that Kennedy wrote the infamous “mystery” passage in the Casey ruling.  (Come to think of it, the passage sounds suspiciously Dorfian.)  And if he has forgotten that, then more recently Kennedy concluded Lawrence v. Texas with this classic statement about a living Constitution:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

Could there be a much clearer statement of what Dorf says no one thinks?  The framers could not know what we can know about justice and oppression, therefore we are entitled to treat their words as vessels whose contents we can change in our own “search for greater freedom.”  The phrase about the Constitution having “its [own] principles” in this passage is a mere fig leaf.  In this telling, the Constitution has no principles, only words whose meaning we can, in Humpty Dumpty fashion, change at will.  What is particularly galling is that Kennedy enlists the framers themselves as partisans of a living-Constitution approach they all rejected.  Of course no one for a moment believed such nonsense, with the possible exception of Kennedy himself.

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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