The Corner

Law & the Courts

The Living, Breathing, Gasping Constitution

Supreme Court nominee Brett Kavanaugh holds his U.S. Constitution in Washington, D.C., September 6, 2018. (Alex Wroblewski/Reuters)

Bruce Ackerman of Yale Law School is one of the leading exponents of “organicism,” a strain of legal scholarship determined to construct a coherent schema around the ad-hoc beliefs of “living constitutionalists.” Ackerman and other organicists attempt to pin down the often-interminable propositions of those, who, to quote Fordham’s Ethan Lieb, “can revere and venerate the [Constitution] only when it is unmoored from its original meaning.”

The difficulty of this task is not lost on Ackerman, who admits that “the living Constitution is organized on the basis of an operational canon that does not even assign primacy, much less exclusivity, to the official canon.” The organicist is something of a mystic, in that way — the Constitution itself is subordinate to the “operational canon” of the organicist who is entrusted to deduce precisely what that canon includes (and what, like the “original meaning” from which it is “unmoored,” it excludes).

Many in the media class are wedded to this jurisprudential philosophy, though they don’t have the requisite bandwidth to articulate it with the sobriety or consistency of Ackerman. Instead, because they presuppose that the Constitution is a living document subject to the fleeting whims of judges in robes, any and all defections from their preferred policy rubric must be a species of “partisanship.”

“We will soon see proof of Supreme Court partisanship,” writes Al Kauffman, brooding over the cases with partisan implications that will soon be before the nation’s highest court. While “each justice has a philosophy of interpretation of the Constitution and statutes,” Kauffman insists, “I predict that the court will decide all of these cases on clearly partisan lines, benefiting the Republican Party that led to their nominations and confirmations.”

Decisions that yield outcomes Republicans like can be laid at the feet of Republican-appointed justices who are mindless shills for the party “that led to their nominations and confirmations.” When organicist justices torture the original text of the Constitution to find a right to abortion hidden deep within the 14th amendment, it’s the nebulous workings of the “operational canon.”

At least they’re honest.

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