It is amusing to witness the liberal hand-wringing over the confirmation of Justice Brett Kavanaugh to the Supreme Court. The discontent is, of course, unsurprising: The left is hurting from this loss, since it promises to fulfill the conservative dream of a reliable majority on the court. What is charming is the liberal spin which, rather than simply noting the obvious — that it’s bad for their agenda to lose a decisive seat — would have us believe that the more fundamental misfortune of this confirmation is that it signals … get this! … the politicization of the Supreme Court.
That’s right, these last four, five or even six decades, when it seemed to many of us that the court was quite transparently on the whole a battering ram for a rolling revolution in the expansion of all kinds of newly “discovered” rights (to secularized public schools, to discrimination in favor of officially recognized groups, to pornography, to practically unlimited abortions, to the virtual abolition of marriage in the name of “gay marriage”) — for all these decades, we are now instructed, the court has just been doing its job as a neutral arbiter of the rule of law and a guardian of reasonable consensus and civility. But now (the liberal spin continues) President Donald Trump and his Republicans have put all this consensus and civility at risk by their blatant partisanship in making over the court according to their divisive ideology.
One doesn’t know whether to laugh or to cry. So let’s take a deep breath, assume this very one-sided liberal perspective might actually be sincere and try to understand. You see, the liberals who have supported the regime of ever-expanding rights really believe that this expansion, the use of federal power to erode the influence of traditional religion and morality and to give legal status to favored victim groups, is — well, just so obviously good and reasonable that it would be an insult to our Founders not to include them in the liberal consensus. (Other more candid leftists simply trash the Founding and the original Constitution as racist.)
Of course, the Founders weren’t thinking of abortion when they added the Third Amendment, which protected citizens from having to allow soldiers to use their homes, or the Fourth Amendment, which protected against unreasonable searches and seizures. They didn’t know they were guaranteeing a secular public square when they forbade the federal establishment of religion or that they were protecting obscenity and pornography when they provided a guarantee of freedom of speech. But since the Founders were in favor of freedom and equality, then clearly they would agree with us modern liberals that every step in the liberation of individuals from traditional beliefs and institutions is a good thing.
From this point of view, those who resist the invention of new rights are simply irrational, and the constitutional theory they have concocted to justify this irrationality is “originalism.” Now you might think that the idea that the original meaning of the Constitution — what it actually says and what it actually means — should be the basis of interpreting the Constitution is not a peculiar, partisan theory, but simply what it means to have a written constitution, “mere constitutionalism,” one could say.
But where liberals are concerned, you would be wrong, since for them it is only common sense, reasonableness and civility to see the Constitution as a “living” document that ought to accommodate every possible expansion in the meaning of individual and favored group rights. The very fact that liberals have succeeded in creating a climate of opinion in which the obvious principle that a written constitution means what it actually was intended to mean is considered just one peculiar and partisan “theory” of interpretation tells us all we need to know about how far we have drifted from being a constitutional republic.
This is not to say that recognizing the authority of the actual Constitution as written immediately resolves all questions of interpretation. But if the addition of Brett Kavanaugh to the Supreme Court means that we now have a reliable majority of justices who reject the idea of the Supreme Court as supreme legislator, then the liberals are certainly right to be alarmed at the loss of such a great lever of power in their ongoing social and moral revolution.
If such liberals could just digest the fact that their “living constitution” (along with the present posture of civility, consensus, etc.) has itself been a partisan weapon all along, then perhaps a real debate might begin about what it would mean to take the actual Constitution seriously in our times.