But the problem here is that these arguments are all on the opposition's turf. Conservatives aren't merely anti-living Constitution - we are pro-dead Constitution. In order for us to live in freedom, the Constitution must die (Faster, Federalist Society! Kill! Kill!).
The case for dead constitutions is simple. They bind us to a set of rules for everybody. Recall the recent debate about the filibuster. The most powerful argument the Democrats could muster was that if you get rid of the traditional right of the minority in the Senate to bollix up the works, the Democrats will deny that right to Republicans the next time they're in the majority (shudder).
The Constitution works on a similar principle, as does the rule of law. Political scientists call this "precommitment." Having a set of rules with a fixed (i.e., dead, unliving, etc.) meaning ensures that future generations will be protected from judges or politicians who'd like to rule arbitrarily. This is what Chesterton was getting at when he called tradition "democracy for the dead." We all like to believe that we have some say about what this country will be like for our children and grandchildren. A "living Constitution" denies us our voice in this regard because it basically holds that whatever decisions we make - including the 13th, 14th, and 15th Amendments - can be thrown out by any five dyspeptic justices on the Supreme Court. In other words, the justices who claim the Constitution is a wild card didn't take their oath to uphold and defend the Constitution in good faith because they couldn't know what they were swearing to.
"What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority," Justice Scalia wrote this week, "is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle. That is what prevents judges from ruling now this way, now that - thumbs up or thumbs down - as their personal preferences dictate."
The reference to "thumbs up or thumbs down" is apt. Caesars ruled in such ways. Liberal defenders of the living constitution say all of this is hysteria by right wingers. We don't need radicals who want to "turn back the clock." Men with a "moderate" or "judicial" temperament and a "humane vision" make the best justices.
Yeah, well they make the best Caesars, too. That's not an argument for turning back the clock and being ruled by five of them.
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