Glenn Reynolds of Instapundit has some sage advice for those on the Left who both want to have a “living Constitution” and block the Supreme Court nomination of Judge Neil Gorsuch: “Be careful what you ask for, because you won’t like it if you get it.”
He has a point. One reason for Leftism’s steady march to ascendancy is that they play fast and loose in the courts with the meaning of the Constitution (even its most clear sections), whereas Conservatives (so far…) are loathe to use the judiciary as activists for change. Reynold’s point is that Gorsuch is an ‘originalist’ when it comes to the Constitution, not a proponent of a “living document” that changes over time, and the Left should be glad for that.
Otherwise, they potentially would face a swift judicial rollback of their most cherished victories over the Framers’ original intent during the past 50 years:
During the New Deal era, the Supreme Court — after being threatened with “court packing” by FDR — endorsed a massive expansion of governmental power on the ground that it would lead to greater efficiency in the economy. Instead, we got a bloated bureaucracy with serious accountability problems, and a disastrous expansion in spending, regulation and federal debt. Based on this experience, I can imagine a conservative justice who sees the Constitution as a “living breathing organism” that must be kept in tune with the needs of the day deciding that the New Deal Court’s decisions were mistakes that violate the Constitution, and must now be rolled back.
To be honest, there is one point about this with which I disagree with the Instapundit. A truly “originalist” court would indeed roll back much of the New Deal, because it was recognized even at the time as a fundamental transformation of the relationship of the Federal Government to the States and the People… one that clearly violated the Constitution on several grounds. Rather than fight activist legislating from the bench with more of the same, however, it would be far better to undo these poor decisions via Congress, so long as the judiciary would let stand changes clearly rooted in the original meaning of the Constitution.
Reynolds’ main point is sound, though: the Supreme Court needs to get back to a strict constructionist view of our charter, rather than blow hot and cold (or Left and Right) with the prevailing political winds. If Gorsuch is confirmed and succeeds in tacking the court that direction, it will bode well for the future.