Strengthening Constitutional Self-Government

No Left Turns

Does anyone believe in a "living Constitution" anymore?

So asks Dahlia Litwick, in what seems to be a frank admission of the bankruptcy or dotage of liberal jurisprudence. Here are my favorite paragraphs:

A Nexis search for the words "living Constitution" turns up literally dozens of stories by conservatives bashing the premise into a hopeless pulp. But it’s hard to find a creditable recent defense of the Constitution as something greater than the span of its own four corners. And I wonder why.


Is it because the words "living Constitution," like the words "feminist" or "liberal," have become wholly appropriated by the Rush Limbaughs of the world? Or is it something deeper—a sense on the part of serious liberal thinkers that Roe v. Wade, with its kabbalistic talk of constitutional penumbras and emanations, really is indefensible? Is it, as I have argued before, that we are all secretly afraid that Scalia is right? That a living Constitution is nothing more than a bunch of monkeys on chandeliers?

Calls for minimalism or pragmatism or incrementalism are now in vogue for progressives. That has all the taste of penumbras and emanations, but only half the calories.

I’d write more, but it’s late, and I’ve been working on a talk I have to give to the incoming freshmen (title: "Reading Lolita in Atlanta").

Hat tip:
Southern Appeal.

Discussions - 8 Comments

Will Baude has answered Lithwick on the new Yale Federalist Society blog.

"Monkeys on chandeliers" is as good a metaphor as I’ve ever heard for how liberal judges and law professors interact with the Constitution. Did Lithwick coin that, or did she take it from Scalia?

She’s factually wrong to trace the "emanations and penumbras" lingo to Roe v. Wade, however, as it actually comes from Justice Wm. O. Douglas’s opinion in Griswold v. Connecticut 8 years before Roe.

PJC:

Thank you, I wondered when someone would point that out (emanations and penumbras). To the best of my knowledge that phrase was never used after Griswold, because even the justices knew the phrase was too silly to expect people to obey. Even in Griswold several justices distanced themselves from that theory, preferring the 9th or 14th amendments.

Roe v. Wadeis one of my favorite opinions to read because of its sheer audacity. I find it quite humorous (in a sick sort of way). Here is the actual text from the opinion: "This right of privacy, whether it be founded in the 14th Amendment’s concept of personal liberty [as] we feel it is, or, as the District Court determined, in the [Ninth Amendment], is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy." That is the opinion that started it all. No matter which side of the issue one is on morally, everyone ought to agree that the decision has NO legal basis for support. The Court simply made an arbitrary decision and decided to extend the sphere of privacy because they wanted to.

Will Baude’s reply consists of citations from recent Supreme Court decisions in which the `living Constitution’ is in fact invoked. So it’s alive in the minds of the justices, but that still leaves the commentators.

IF it’s true that the commentators are backing away from the notion, the simplest explanation seems to be this: (a)interpretative elasticity is a game that any number can play; (b) the next couple of appointments are likely to be more conservative than the majority of commentators would like; (c) just because conservative judicial nominees will eschew `broad’ readings doesn’t mean that they’ll behave that way, once on the bench; (d) only this time, the interpretations might serve Republican Party objectives instead of Democratic Party objectives.

Steve:

Yes, that Harry Blackmun was quite a remarkable legal mind! The passage you quote could be translated as "Oh, to heck with it, it must be in there somewhere because the smart set thinks easily available abortion can be downright handy, and we can’t let down the editorial board of the New York Times, the entertainment industry, and the faculty of Harvard, now can we?"

The late Archibald Cox of Harvard, the late Philip B. Kurland of U-Chicago, and John Hart Ely of Stanford are three liberal legal scholars I can name off the top of my head who support legalized abortion on policy grounds but who have also written that the majority opinion in Roe is constitutionally bogus. But you probably knew about them already: It’s one of the great embarrassments of contemporary liberalism’s take on constitutional law that liberals find themselves frantically defending a decision that so many of the more astute among them KNOW to be a constitutional fraud.

The aspect of Roe that has always amazed me is that it was a 7-2 decision. I cannot believe the majority was that solid. Did not any of the justices have some qualms?

I doubt if Roe will go anywhere. Stare decisis will rule, O’Connor already stated that in Casey. If the Court was feeling particularly wild they might allow states to regulate it more, prevent partial birth, etc. but women will always be free to abort in the first trimester through any means they wish, as long as it is not medicially risky (I believe Roe stated if a particular form of abortion were more risky than birth, then states could regulate)

Steve, the "real" vote was not 7-2. Writing assigments for the Supreme Court are determined by the most senior member voting with the majority, so Burger voted with the majority in order to give himself the ability to assign the opinion to Harry Blackmun. Believe it or not, that lawless piece of judicial legislation known as Roe v. Wade actually could have been worse (in the sense that it could have borne even less resemblence to a proper use of judicial authority). If the vote had not been 7-2, it would have been worse because someone far more liberal than Blackmun would have written the opinion.

Ohio Voter:

Thank you for that interesting piece of information. I did not know that, but find it to be an excellent example of prudence: making the best out of a bad situation.

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