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 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.

Most Popular


An Idea for Student Loans: Get Rid of Them

Here is a three-part plan for something practical the federal government could do to relieve college-loan debt. Step 1: The federal government should stop making college loans itself and cease guaranteeing any such loans. Step 2: It should prohibit educational lending by federally regulated financial institutions ... Read More

A Reckoning Is in Store for Democrats

The crisis of the Democrats is becoming more evident each week. Those of us who have been loudly predicting for years that the Russian-collusion argument would be exposed as a defamatory farce, and that the authors of it would eventually pay for it, are bemused at the fallback position of the Trump-haters: that ... Read More
White House


Some of you will be familiar with a lefty, partisan Democratic organization called MoveOn, formerly MoveOn.Org. It was founded during an investigation into President Bill Clinton’s shenanigans (which were not, Democratic mythology notwithstanding, strictly sexual in nature) and argued that it was time for the ... Read More

Why ‘Stop Sanders’?

'Where is the wisdom we have lost in knowledge?” T. S. Eliot asked. “Where is the knowledge we have lost in information?” And where is the intelligence we have lost in cleverness? Cleverness is the plague of our political classes, an influenza of the intellect. The consultants are always trying to ... Read More