From Jonah Goldberg at National Review in ‘Living Constitution’ Faces a Mercy Killing
How did we get here? Two tracks converged to deliver us this dysfunction. The first is narrowly political. The Democrats, confident that they were on the right side of history, thought there was no harm in accelerating the rush to total victory. For years, Democrats practiced the rule that all is fair in judicial-confirmation battles, starting with the war on Judge Robert Bork in 1987. Then, under the leadership of Barack Obama and then–Senate majority leader Harry Reid, they did away with the filibuster on judicial appointments short of the Supreme Court, opening the door for Republicans to nudge it slightly more wide open.
The second track is longer. Starting over a century ago, progressives began emphasizing ends over means. If the Supreme Court could deliver wins unattainable at the ballot box and unsupported by the Constitution, so be it. Thus was born the “living Constitution” — the doctrine that holds that the magical parchment should mean whatever progressives need it to mean at any moment. This was how Anthony Kennedy became an (apparently temporary) gay-rights hero. After consulting his feelings, he found a constitutional right no one had found in the text before.
He who lives by the Supreme Court Ruling dies by the Supreme Court Ruling. Randy Barnett tweeted, “Since originalism is so objectionable to progressives, who’s up for a living constitutionalist justice who shares the President’s moral and political beliefs?”
In Friends Divided historian Gordon Woods wrote of Jefferson’s dislike for Chief Justice John Marshall. The theory of judicial review where the Supreme Court was the final arbiter of constitutional law was too much central power. ” It was a good thing for judges to be independent of a king, but it was a gross error to make them independent of the ‘will of the people.'”
The Progressive Era was when the balance tilted towards majoritarian democracy over the protection of individual rights. Court decisions sought to uphold the will of the people expressed in Congress, sometimes at the expense of constitutional protection for minority rights.
William Howard Taft wrote in Popular Government in 1914 that Progressive efforts to democratize the courts were counterproductive and dangerous, destabilizing government to the detriment of everyone. Taft strongly refuted judicial recall, popular nullification of judicial decisions, and popular referendums. Such efforts to empower the ‘will of the people’ ended up being decided by a distinct minority. Such judgments required an expertise and wisdom not conducive to a popular election.
When the ends justify the means, oppressive power is rationalized and accepted. It is shortsighted and foolish not to imagine that power in the hands of your opposition.
The solution is not to neuter or empower the court but for Congress to do its job,