Shot In The Dark: RIP Living Constitution

October 03, 2005

RIP Living Constitution

The big casualty of the Roberts hearings?

According to Curt Levey, it's the concept of the "Living Constitution"

While liberals have traditionally embraced the living Constitution, conservative legal thinkers abhor it. They see it as nothing more than an excuse for judges inventing law — like the Supreme Court's Miranda warnings and the "right to define one's own concept of existence, of meaning, [and] of the universe."

Given the dependence of the liberal judicial agenda on a living Constitution, it is telling that the term and its equivalents were used only once by a Democratic senator during the Judiciary Committee's five days of hearings and voting. Dahlia Lithwick of Slate reports a similar abandonment in the literature. One can only conclude that liberals now feel the need to distance themselves from the concept. Deprived of the unabashed support of its biggest fans, the living Constitution’s best days are likely behind it.

Adios, Living Constitution.

Even if George Bush accomplishes nothing else in his two terms (and that will not be the case), if the idea of the "living constitution" dies on his watch, it will be a fine accomplishment.

Posted by Mitch at October 3, 2005 04:47 AM | TrackBack

Comments

Think Justice John Marshall. Before there was a doctine of anything. Think Koramatsu, Mitch. Heart of Atlanta - decision based on the commerce clause, but what ELSE did it do?. And um, what about Roosevelt's "New Deal"? Unconstitutional, but it pulled the US out of the great depression and put us in a position to fight for ourselves and others in WWII. The SC had to do a bit of stretching to get that to work ""constitutionally".
You go too far. Really.

Posted by: carmelitta at October 3, 2005 10:59 PM

The Supreme Court is supposed to be non-partisan.
Allegedly. But we all know that the justices tend to vote one way or the other - conservative, liberal, or moderate....all that. But they,in using all 6 methods of interpreting, do not change the constitution. We have amendments to accomplish that. They vote on these cases. VOTE. That is fair. Not one justice is tied to voting one way or another. For Levy to argue that the "living constitution" is useless because it hasn't been used for 30 years, and then turn and argue that the "liberals" USE it defies his earlier point.
All of these methods are useful. Everything has its purpose. Sometimes nothing else will do. There are other methods that can bring you close and those methods are applied. But as in Korematsu - a decision I personally disagree with, BUT, Black goes on to make a statement in his opinion that becomes the cornerstone for civil rights litigation. Why didnt' they just go to the basic rights of a citizen? I guess it was to stroke the President's right to make his Executive Order. Or maybe at the time, they really believed that the nation was under threat and if there was internal sabotage, that we would be attacked on the east coast as well and we would fall. Think of the technology of the day. It all plays in.
With our resources and technology today, we would not stand for an Executive order similar to the on in 1944. We had an attack on our soil at 911. We didn't go lock up every citizen of middle east decent did we? We didn't need to. We have better technology to accomplish a handle on possible sabotage and espionage.
Sometimes Judicial Action is necessary. With civil rights - they go to that "living constitution" based Korematsu decision -although texturally it seemed contrary, to bring it civil rights back to where it ought to be as the Framers intended. Black was very wise to make his statements clear about prejudice in his opinion.

Levy's arguments were embarrassing and narrow. It angers me to see someone play Comte frankly.

Posted by: carmelitta at October 4, 2005 12:07 AM