The case for a static Constitution

After a very funny riff about the Democrats' demand for a "living, breathing" Constitution, with the implication that the conservatives want their Constitution "dead, dead, dead" Jonah Goldberg gets to the meat of the matter:

The case for dead constitutions is simple. They bind us to a set of rules for everybody. Recall the recent debate about the filibuster. The most powerful argument the Democrats could muster was that if you get rid of the traditional right of the minority in the Senate to bollix up the works, the Democrats will deny that right to Republicans the next time they’re in the majority (shudder). The Constitution works on a similar principle, as does the rule of law. Political scientists call this “precommitment.” Having a set of rules with a fixed (i.e., dead, unliving, etc.) meaning ensures that future generations will be protected from judges or politicians who’d like to rule arbitrarily. This is what Chesterton was getting at when he called tradition “democracy for the dead.” We all like to believe that we have some say about what this country will be like for our children and grandchildren. A “living Constitution” denies us our voice in this regard because it basically holds that whatever decisions we make — including the 13th, 14th, and 15th Amendments — can be thrown out by any five dyspeptic justices on the Supreme Court. In other words, the justices who claim the Constitution is a wild card didn’t take their oath to uphold and defend the Constitution in good faith because they couldn’t know what they were swearing to. “What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority,” Justice Scalia wrote this week, “is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle. That is what prevents judges from ruling now this way, now that — thumbs up or thumbs down — as their personal preferences dictate.”

He is, of course, absolutely right. I still shudder when I think of an appearance I made in Court many years ago before a very liberal judge. I was representing the defendant, and I'd filed a good brief (if I do say so myself) methodically demonstrating that the plaintiffs' claim did not exist under the law -- indeed, that the California Legislature, some time before, had deliberately removed the books the only statute that might give some color to that claim. My judge didn't care: "You're right," he said. "But I think there's something there. You're motion to dismiss is denied." That's not rule of law, that's tyranny.