When a lawyer on the bench interprets the so-called Living Constitution they have no shackles. In his book A Matter of Interpretation, Justice Scalia explained that adherents to this view believe the Constitution is “a body of law that (unlike normal statutes) grows and changes from age to age, in order to meet the needs of a changing society.” And who determines when reformation under the Living Constitution is needed and what the adjustment will be? Is it the people? Is it their elected representatives? No. “[I]t is the judges,” Scalia noted, “who determine the need and ‘find’ that changing law” under the Living Constitution.
Scalia did not fear change as some have argued; rather his real fear was that the Living Constitution crowd would seek to prevent it:
My Constitution is a very flexible Constitution. You think the death penalty is a good idea—persuade your fellow citizens and adopt it. You think it’s a bad idea—persuade them the other way and eliminate it. You want a right to abortion—create it the way most rights are created in a democratic society, persuade your fellow citizens it’s a good idea and enact it. You want the opposite—persuade them the other way. That’s flexibility. But to read either result into the Constitution is not to produce flexibility, it is to produce what a constitution is designed to produce—rigidity.
Folks on the right and left often criticize court opinions they disagree with as judicial activism by judges imposing their values on the republic. But both sides are suspect to this siren song of Romantic Judging, using the power of the courts to advance their political agenda through the courts rather than by democratic action and persuasion. Recognizing this draw of power, perhaps now is the time to debate reforms that would reform the power of the courts to impose the values of either side on the country. Who decides such issues is as important as how they are decided.
Maybe now, as different people voice concern about the power of the court, the country should consider two judicial reforms. First, the reform suggested by Texas Governor Greg Abbott that 7 of 9 votes of the Justices be required in order to overturn a democratically enacted law. A second reform is found under Article III Section 2 of the Constitution itself, which gives Congress the power to limit the appellate jurisdiction of the Supreme Court. Implied is Congressional power to limit the jurisdiction of the lower federal courts. Both suggestions are subject to criticism and other proposed reforms may deserve a fuller hearing. The point is this is a debate worth having.
If the power of the court were subject to additional checks like these, perhaps both the left and the right would not have to worry as much about judicial appointments and the ideological makeup of the court.
Thompson is a Wright & Greenhill attorney.