Sauce for the goose…

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.

Why ‘reform’ is well-nigh impossible

By now, most people have figured out ‘the system’ is falling apart.  Plenty of plans, schemes and dreams are being offered up as remedies.

I encourage you to read this response to the idea of calling a Constitutional Convention:

The problem is that this “remedy” isn’t a remedy and if it comes to pass what you want won’t happen.

I know this for a fact and, if you think about it, so do you.

I know what you’re going to say: How can you be so sure?

It’s simple: There is nothing wrong with the Constitution as it sits now.  The problem is that it’s not followed…

…All of this game-playing in the judiciary rests on the thinnest of foundation; so-called judicial comity and stare decisis.  That is, the premise that once a decision is made even if blatantly unconstitutional, it is thereafter the foundation of everything that follows and reciprocity and recognition is owed against that (blatantly unlawful) decision.

You can’t fix this with a ConCon or with “more Amendments” because they are subject to the same “interpretation” as has been all of the previous; the only solution is to unwind the previous violence done to the Constitution and then, if appropriate, pass Amendments that further constrain the rights protected by and powers delegated therein.

In other words, we live in a time of lawlessness and a lack of respect for what should be clear boundaries.  No tinkering around with written documents will affect that until there is a change in heart for those who will live within (and lead) such a system.  When the Founding generation is discussed today, it’s often a strange combination of trying to tear them down, while simultaneously decrying their “puritanism.”  OK, fine: let’s acknowledge their generation was no more “perfect” than any other human generation.  But they had something we now mock:

…a common standard to strive for.  That alone conveys much.

“In those days there was no king in Israel. Everyone did what was right in his own eyes…”  Judges 17:6

In such a social condition, where nobody recognizes any higher authority over them, the ‘law’ is no protection.  It is merely a weapon of self-justification in the hands of those enabled to wield it.