Only good Constitution is deceased Constitution

Tuesday, July 15, 2003 at 12:00am

Over the Fourth of July weekend, Supreme Court Justice Sandra Day O'Connor was nearly squished. A giant beam nearly fell on her as she sat on the stage during a celebration of the U.S. Constitution.

While I wish no harm to befall O'Connor, there was a Tom Wolfe flavor to the near-death mishap. For a brief moment, it felt like the real authors of the Constitution were reaching out to punish the personification of our "living Constitution."

After all, O'Connor is the Constitution these days. Because she's almost always the tiebreaker in every close vote on the Court, she's been dubbed "the most powerful woman in America" by The New York Times and National Review alike.

As Charles Krauthammer put it recently, "The Constitution is whatever Justice Sandra Day O'Connor says it is. On any given Monday." That's because O'Connor changes her mind all the time. Seventeen years ago, for example, she thought anti-sodomy laws were constitutional. Now she doesn't. And since the words on the constitutional parchment haven't changed, it's pretty clear that the woman behind the curtain is the real Wizard of Oz.

Al Gore summed up the phrase "living Constitution" pretty well when he was asked during the 2000 campaign what kind of judges he'd appoint. "I would look for justices of the Supreme Court who understand that our Constitution is a living and breathing document, that it was intended by our Founders to be interpreted in the light of the constantly evolving experience of the American people."

The most popular argument against a "living Constitution" is pretty simple. Once you accept the proposition that the words on the page can mean what you want them to mean, well, then the words on the page matter less than the views of those we select to interpret them. Once this happens, the Court in effect becomes an unelected and unaccountable legislature.

This is why many conservatives think champions of a living Constitution are really just cheaters. In other words, proponents of a living Constitution may claim to speak for the people, but they see no need to abide by the wishes of the people if they think the people are wrong.

That's fine with me if the Constitution has a fixed meaning. But if the meaning of the living Constitution is simply a matter of one "swing" justice's opinion, then somebody must prove to me that God's driver's license says "Sandra Day O'Connor" on it.

But there's another argument against the doctrine of the living Constitution that we don't hear very often. Constitutions are supposed to be dead.

Historically, radical democrats like Thomas Jefferson have despised the idea that we the living should have our choices limited by the deceased. Why should what a bunch of dead guys decided 200 years ago limit our decisions today? And they're right. Why shouldn't we be able to vote away any rule established by dead white males?

The answer: The rules of the dead keep us free. Imagine you're playing baseball, and all the rules can be changed mid-game. Technically you'd be "freer." After all, you could vote to eliminate strikes and balls. But then again, so could everyone else. In other words, if you don't set the rules in advance you don't get freedom; you get anarchy.

A Constitution that says no rules in our society are permanent loses its meaning. But when one generation sets the rules for future generations, writes Harvard's Stephen Holmes in Passions and Constraint: On the Theory of Liberal Democracy, "It does not enslave but rather enfranchises future generations."

I'm not implacably opposed to changing the Constitution, but the way we do that is by amending it, not by simply "reinterpreting" it based upon the gut instincts of a few unelected lawyers.

Jonah Goldberg is a syndicated columnist.

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