A few short observations on today’s Senate hearing (video link included) titled “With Prejudice: Supreme Court Activism and Possible Solutions” (at which I testified):

1. I think that the comments by the two Democratic senators, Christopher Coons and Sheldon Whitehouse, and the Democratic witness, Duke law professor Neil Siegel, illustrated what I stated in my testimony: there is no constitutional ruling that living-constitutionalists can’t justify.

2. But if the Constitution is actually so indeterminate, then the grounding for the power of judicial review that Alexander Hamilton set forth in Federalist No. 78 and Chief Justice Marshall expounded in Marbury v. Madison collapses.

3. The Democratic senators spent much of their time contending that various “conservative” rulings—e.g., Heller, Citizens United—can be subjected to the same sorts of criticisms that conservatives direct at Obergefell. Senators Ted Cruz and Jeff Sessions and my fellow witness, law professor John Eastman, effectively countered the contentions. I’d just add that if you embrace an utterly indeterminate theory of constitutional interpretation, you have no standing to assert that any opinion is objectively wrong.