Glenn Reynolds: A ‘living Constitution’ on the right?: Glenn Reynolds
Liberals should be glad that Neil Gorsuch is an originalist and not a conservative activist.
With Judge Neil Gorsuch’s Supreme Court confirmation hearings coming up, we’re beginning to hear the usual tired attacks on “original understanding” approaches to interpreting the Constitution. One such attack, written by Prof. Richard Lempert and published by Brookings, drew
a harsh rejoinder by Prof. Randy Barnett, who characterized it as “out of touch.”
But Barnett made another point that’s worth thinking about here: What if right-leaning jurists listened to their critics on the left, and adopted a “living Constitution” approach instead of relying on what the Framers understood the text to mean? As Barnett asks: “Why would you possibly want a nonoriginalist ‘living constitutionalist’ conservative judge or justice who can bend the meaning of the text to make it evolve to conform to conservative political principles and ends?
We’re all going to get a much more “living” constitution quite soon; When only one more state votes for a GOP Governor, and GOP majority House and Senate in 2018, that will equate to unlimited constitutional amendments with or without the support of Trump, with or without the need for input from Washington, nor could Washington do much to stop any such amendments.
The states can amend without regard to opinions of Federal employees whether elected or not (again assuming enough GOP majority states) via constitutional convention called for by two-thirds of the State legislatures. Keeping in mind that GOP majority Fed House and Senate are highly likely in 2018 even in the worst case scenario because of the math, it probably wouldn’t come to that.
Regardless of method, a good number of constitutional amendments are already queued and now are actually within the grasp of the GOP.
The real question is whether the GOP can refrain from forming up into a circular firing squad before getting any of them passed.
2018 is going to be fun.
2019 will be “interesting” in the Chinese curse sense of the word.