and Jay Cost
write about the patent liberal surprise over the Supreme Court's serious treatment of constitutional objections to ObamaCare. Podhoretz attributes the surprise to impenetrable liberal unwillingness to take conservatives' arguments seriously; Cost makes a similar point, noting that liberals rarely see conservative ideas presented respectfully in any of the media they to which they frequently expose themselves.
This does, indeed, account for much of the surprise among liberals in general. But how could legal experts and lawyers have underestimated the strength of the conservative case? I'd argue that it all comes down to the idea -- much beloved of liberals -- of a "living Constitution." Admittedly, there are plenty of fancy ways to discuss the concept, and very intelligent people -- like Justice Breyer -- have found erudite and interesting ways to do so.
Ultimately, however, total immersion in "living Constitution" jurisprudence leads to a strong (but not necessarily justified) presumption that anything that seems to be good policy must somehow be constitutional. That's because "living Constitution" jurisprudence essentially imbues justices with the power to decide a case in the way they deem "best" (whatever that means) so long as they can find a way to link it back, however creatively, to some previously-identified constitutional right.
For example, only seventeen years after finding that there was no constitutionally-guaranteed "right" to engage in gay sex, the Supreme Court overturned that decision (and a Texas sodomy statute) by deeming, for the first time, that consensual sexual contact was actually part of the right to "liberty" protected by the Fourteenth Amendment. In Roe v. Wade, thirty years earlier, the right to abortion was arbitrarily located in a privacy right that had been previously found in the due process clause of the Fourteenth Amendment.
Here is the relevant part of the text of the Fourteenth Amendment:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In the "living Constitution" view, the very meaning of our founding document changes to allow it to accommodate modern mores. Ultimately, however, that means that nine unelected justices are in the position of deciding what exactly "modern mores" are -- a job that is inherently better suited for the people's elected representatives. That's why "living Constitution" jurisprudence raises the danger of i judicial oligarchy and represents a threat to representative democracy.
Ultimately, a "living Constitution" approach transforms judging into nothing more than an exercise in creative writing, in which judges can "find" any "right" they deem to be "best" for the country in the Constitution.
The "living Constitution" view is pervasive in elite legal circles and elite law schools. Indeed, what seems to me a more rational approach -- seeking to determine cases based on an understanding of the Constitution in light of the Founders' intent in writing it -- is routinely denigrated. In law school, liberals imbibe a "living Constitution" view as if it were mother's milk. It leads to an overwhelming sense of confidence that anything that they believe is good policy must somehow be constitutional.
And that's how so many serious liberal legal scholars could be so blindsided by this week's Supreme Court arguments.