Being Right: The Conservative Court

Will Nagle

If there is one principle that can be claimed as the purpose for the founding of our nation, it would be this: freedom from tyranny. To achieve this, the founders created the single most transformational legal document in history: The US Constitution. This was the bulwark meant to protect US citizens from the government an enumeration of our social contract. This remarkable document has, by and large, withstood the test of time and allowed us to enjoy historically unprecedented freedoms.

Perhaps the boldest addition to the document, with the writers’ understanding that times change and so too should its founding document, was the ability of the country to add and remove Constitutional Amendments in the future. We call it a “living Constitution,” because through the right processes it can be changed to fit the evolving needs of the populace. A high bar to these changes was set to maintain a level of stability in government and prevent short-lived populist outbursts from gaining undue power. For an amendment to be ratified, two-thirds of Congress needs to vote for it, followed by three-quarters of the states (38 of 50). There are two notable branches of government absent in this process: the Executive and the Judiciary. Because the president can pick Supreme Court justices, if the president or justices were allowed a role in the amendment process, the executive would be able to nullify the powers of the states and Congress. This would allow full power over the enactment of laws and the checks on laws deemed unconstitutional, leading to what the framers  feared most: a new king.

The Left’s definition of a “Living Constitution” is very different. They believe that, because times change, justices should determine the proper meaning of parts of the Constitution based not on the purpose of the past writers, but instead on the justices’ perceived ideas of what is required in the present. This idea was first developed by the notoriously racist President Woodrow Wilson, and his group of progressives, who believed in the sole power of the presidency in orchestrating societal change. He wrote that, “No doubt a lot of nonsense has been talked about the inalienable rights of the individual, and a great deal that was mere sentiment and pleasing speculation has been put forward as fundamental principle…the President is at liberty, both in law and conscience, to be as big a man as he can. His capacity will set the limit.” Wilson should at least be given credit for his intellectual honesty, knowing that his version of the “living constitution” was only a means of increasing the power of the president and declaring the Constitution a dead letter, which allowed him more pathways to achieve his goals that ran contrary to the founders’ ideals.

 While people decry Justice Antonin Scalia as “arch-conservative,” he has, in practice, adhered to his theory of Originalism, in which he made his decisions strictly based on what he believed was the original intent of the writers. This philosophy has created some unusually nonpartisan consequences. For instance, in Kyllo v. United States, Scalia crossed ideological lines by deciding that police’s thermal imaging of a home to receive a warrant for marijuana manufacturing was unreasonable search and seizure prohibited by the Fourth Amendment, declaring it unconstitutional and angering Republicans who believed in giving police increased power. Scalia’s is a true definition of American Conservatism applied to the Constitution. American Conservatism is the preservation, or conservation, of our founding principles and institutions, preferring change to happen incrementally and through the processes outlined in our existing institutions. Even though Scalia may have personally disliked his decision, he realized the importance of preserving the integrity of the writers’ original meaning and giving deference to the states and Congress in his decision.

For Liberal readers, imagine what the philosophy of the “Living Constitution” could do in the wrong hands. Even though it was popular to ban “Citizens United,” (a movie critical of Hillary Clinton) with the goal of getting money out of politics, it would also have banned Michael Moore’s new documentary critical of Donald Trump. Let’s not stop there. If an equal rights amendment were to pass, Conservative living Constitutionalists could simply declare that, in the present, the amendment was inapplicable to the needs of the nation today. Even more sinister: there is nothing inherent in this philosophy that would stop a future Woodrow Wilson from appointing justices who could declare the Civil Rights Act fully unconstitutional, or maybe decide that freedom of speech did not pertain to speech critical of the president. The only way to prevent this is to enact constitutional change through the deliberate process of the legislature, not through the whim of appointed judges. In the words of Thomas Jefferson, “Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.” He would be disappointed by the outlook of our President and our future Madame President.