1. I still can’t link from home--long story. So I’ll have to tell you to go to NRO to read Matt Franck’s long defense of Huck’s living Constitution comments as "perfectly unobjectionable." Matt, of course, really knows his Constitution and is no Huck fan.
2. Fred has admitted that he didn’t understand that Huck was talking about AMENDING the Constitution. But he still criticizes him for naively using a phrase or "code words" that signify, for those in the know, judicial activism. But surely Huck was redefining a sophisticated slogan to fit with what the Founders really had in mind, as I do with "postmodernism rightly understood." (And perhaps the extremely pro-life Huck frightens federalism Fred by bringing up a fundamental alternative to judicial activism and popular sovereignty at the state level--amendment. Huck’s position is on abortion etc. is clearly too extreme to be winning one, but you gotta admire his guts for sticking with it.)
3. And to be fair-and-balanced, as always, let me add that Fred clearly gave a very fine first principles, anti-progressivist speech in South Carolina last night without relying on a script. He took his election eve obligation more seriously than the other candidates. As several have said, if Fred survives South Carolina, he’s going to have to bring that message forward all day every day to have a chance. (Remember: One poll has him surging, but clearly he’s going to have get at least a sliver, and, I think, a gold.) (Romney has won in Nevada--that’s three golds for him.)
Huck used words that immediately triggered a response. The words "living Constitution" are almost casus belli in Conservative legal circles.
And old Huckabee houndog is dead right that popular sovereignty has the same moral problems today, as it had in yesteryear. But for all that, throwing Roe back to the states is STILL progress, albeit incremental progress.
As for Fred speaking coherently, he ought to, he's a lawyer isn't he? He shouldn't need a script when speaking about America's founding principles.
Professor Lawler,
I'd like to think that Huckabee was trying to redefine a phrase in a helpful way; but I think he really just wasn't thinking very well. He's already demonstrated a lack of understanding of constitutional law - think back to a recent debate where he said he wanted to bring all of the detainees from Gitmo to here, but hold them in the same situation. Thompson countered and said that would immediately change their legal status in the Court's mind and Huckabee, very incoherently, tried to argue with him.
Aside from that, any Republican who wants to run for President as a conservative should know darn well not to talk about the goodness of a "living constitution."
Here's Matt's post, which gets matters exactly right.
Caleb, It goes wo saying that there might have been some irony in my comment. But the theory that the
Constitution lives through amendment does make sense. Not only that, the possibility of amendment is an important qualification to humorless prattling about original intent, as if that is altogether obvious or settled everything. Let me add that turnout tendencies in SC seem to be favoring McCain.
Professor,
Ok, I agree with you in that sense. But that's not how "living constitution" is understood by the public, or discussed by academics or jurists. And Huckabee should know that.
One of his best traits is his ability to communicate. The fact that he increasingly seems to get himself into trouble with statements like this is troubling. It makes me think that he hasn't thought about some of these issues nearly enough. And though Matt on NRO might say that none of the candidates have spent time on con-law, that's clearly not true of all of them. Thompson at least has spent considerable time thinking about these issues.
Caleb, I'll admit that Huck says dumb things, but he's not bad at all for someone with virtually no staff. And I'll say again this living const. thing would have been a nonissue had Fred not willfully distorted what Huck said. Fred got Huck in trouble on purpose, as some little kid would say.
If this is right, we could be looking at a Huckabee win, but never trust an exit poll.
If Huck wins, then we'd have to go on and ask the question: "can we expect a solid South to line up behind him, in as much as Huck defeated Thompson and McCain in South Carolina." I don't think so. It really depends on whether Fred starts to catch fire. And it also depends on whether Rush starts touting Thompson. And I haven't been listening to enough talk radio to say whether or not Limbaugh is pushing Thompson, or is going to start pushing Thompson. It's pretty clear that Limbaugh is decided against McCain and against Huckabee. He's talked up Romney some, enough to make you think he's leaning that way, but he's also spoke favourably of Giuliani and Thompson.