Jewish World Review Feb. 22, 2006 / 24 Shevat 5766
The U.S. Constitution: Dead or alive?
The living Constitution, which has performed innumerable feats of jurisprudential prestidigitation, has accomplished a miraculous new trick during the national debate over NSA surveillance. It faked its own death.
To do this, it needed the help of its numerous magicians' assistants in the Democratic Party (with some audience participation by Republicans, too).
If you recall, the "living Constitution" is the notion that the meaning of the Constitution changes over time. One day nine justices simply wake up, and when they arrive at work that day, they discover that the words in the document they studied their entire adult lives suddenly mean something new and fresh. It's a bit like a science experiment where you try to grow mold in a Petri dish. A dead (or "enduring") Constitution is simply one that means what it says and says what it means. Obviously, this is a gross generalization, but you get the point.
Al Gore summarized the almost universal view among leading liberals when in 2000 he promised, if elected, to appoint judges "who understand that our Constitution is a living and breathing document," and who grasp that "it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people."
Notice how Gore used the word "understand" instead of "believe," suggesting that the living Constitution is a fact of life and those who don't see it are ignorant as opposed to merely wrong. This may seem like a pedantic observation, but it does capture in miniature the smugness of liberals who, ever since Woodrow Wilson mocked "Fourth of July sentiments," have treated belief in the living Constitution as a sign of basic intelligence.
Enter the recent donnybrook over the NSA's warrantless wiretapping. Suddenly, Al Gore still largely speaking for the liberal establishment is saying that the White House's evolved understanding of constitutional requirements amounts to "disrespect for America's Constitution which has now brought our republic to the brink of a dangerous breach in the fabric of the Constitution." Suddenly, the Constitution isn't alive, it's a fabric. Liberals have had an overnight love affair with the founders, invoking good old Ben Franklin and his notion that "Those who would sacrifice liberty for security deserve neither."
Not long ago, liberals were telling us that such dead white men from the 18th century had nothing to teach us in a high-tech, globalized economy. But now that the White House is "adapting" and "evolving" in the face of an enemy that is using high technology and loopholes of globalization unimaginable to the founders in order to kill us, the hip modernists want to go back to the horse-and-buggy age.
Now, none of this speaks to the merits or even the constitutionality of Bush's wiretapping. On the merits, the practice itself makes so much sense that even Democrats are terrified to denounce it. Instead, they claim with some plausibility that the White House simply cannot wiretap unilaterally, even when the communications involve a person overseas. That's a good fight to take to the Supreme Court and the American people in both 2006 and 2008.
But the sudden love affair liberals are having with what they believe to be original intent is grossly hypocritical and opportunistic.
And yet it's also instructive. Let's stipulate for the sake of argument that Bush's wiretapping is both corrosive to liberty and flatly contradicts the original intent of the founders. Well, in an age when the Constitution is made of flubber, that hardly makes it indefensible. I know that liberals think "evolution" has an inherently positive connotation; that if A evolves to B, then B must be better in some way than A. But, as any conservative will tell you, "evolution" and "improvement" are hardly synonymous.
For the first time in decades, liberals are grasping that the "living Constitution can grow into something tyrannical. They had no problem with the Constitution's blob-like expansion into areas conservatives cherish (nor did they care much when Bill Clinton used the Constitution in ways the anti-Bush crowd now defines as Orwellian). But now that the shoe's on the other foot, they suddenly see genius in those old fusty white men.
The problem is, you can't switch back and forth from living Constitution to dead and keep your credibility. The whole point of constitutions is that the rules remain the same when convenient and inconvenient, which is why justices like Clarence Thomas and Antonin Scalia often rule contrary to their political preferences. But liberals ask the Constitution to play dead when convenient, and then, when the temporary crisis has passed, they want it to burst forth in living Technicolor. In other words, the Founding Fathers are only right when Al Gore thinks they were right. All other times, they're irrelevant old white men.
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