If It Were Truly Dead We'd Need No Judges
Readers made this point over and over, but here's Stephen Spear: "If there is one and only one 'correct' interpretation of when a law is constitutional, then there's really no need for a court to engage in constitutional review."If It's Dead, I Don't Recall Signing It
John Ehrenfeld muses: "One aspect of this 'controversy' that I rarely hear mentioned is that we the people living today never signed onto this Constitution. We inherited it at birth."
Brennan Lives, Too
A thought about the need for sometimes extreme meddling by the court by Ted Niblock: "I don't know how many times I have had to remind people that we didn't make this stuff up to annoy Justice Scalia, people were getting lynched for trying to vote! Minorities and women (who were discriminated against even while hovering at around half the population) were being systematically kept from the key freedoms and liberties that the Constitution was designed to protect, and no other part of the system was going to change that."
Several readers draw a parallel between a Constitution etched in stone, and a Bible etched in stone. Christopher Schaeffer asks: "Do you hear the echo of a religious debate in this conversation? Is the Bible the un-interpretable, literal Word of God, or is it part of a tradition of revelation that requires us to think again in every age about what things like 'Honor thy Mother and Father' really mean?" Says Russell Simon: "If we were to outlaw usury, as the Bible suggests, the world economy would immediately collapse."
The Third Way
Many of you agreed that the fundamental problem here is the uncompromising rhetoric on both sides. A suggestion from Dan Deacon: "It is probably true that the Brennan view, in its pure form, shows an unacceptable hubris. A completely untethered judiciary, throwing aside legislative enactments and enacting its own views, is something to be scorned. At the same time, however, originalism fails in many important ways, not the least of which is its failure to ground some of our most deeply held beliefs about the Constitution. Liberals are right to shy away from the extremes of the 'living Constitution,' but they are wrong to subsequently join the push for originalism. What is needed is an integrated approach to judging, one that takes into account text, common-sense beliefs about political morality, legal history, social science data, and other tools as appropriate. Judging should be viewed as what it is, namely, a mix of creation and interpretation, integration and imagination."
The New Agent
Not too many of you had suggestions for how to respond to the assault from the right. Jonathan Stein, citing Larry Kramer, suggests that "The Left should respond by insisting that the court is not creating rights, but simply protecting rights that society as a whole has created." And Brian Gygi: "How to sell a living constitution to Mister and Mrs. J. A. Citizen? Just show them a set of medical procedures (or really almost any document) from 1789 and ask them if they would like to still live under those rules, or ones that maybe, just maybe changed with the times."
To be sure, some of the staunchest defenders of the term "living Constitution" are not huge fans. Here's Bruce Allardice: "The 'living Constitution,' precisely because it has nothing to do with the actual Constitution, gives judges a virtual blank check to legislate. That is power. Raw power. Incredible power. Of course judges will be tempted to use, and abuse, that power. Who wouldn't?" And a few of you rejected the distinction I made between activist judges and adherents of a living Constitution. So, let's hear it from the right side of the spectrum now: Why should we unplug the Constitution? Go beyond the crazy monkey judges and answer the questions posited above: Do you think Brown v. Board was wrongly decided? Which framers—and which ideas of which framers—are we supposed to be enshrining here? What role is left for judges under this regime?
Your answers coming soon.
Readers' names will be used unless they specify otherwise.