The Imaginary Constitution
S E E D E D C O N T E N T
The era of the Supreme Court serving as progressivism’s fairy godmother should have ended long ago. Taken together, Presidents Richard Nixon, Gerald Ford, Ronald Reagan, and George H. W. Bush appointed ten consecutive Supreme Court justices. (Jimmy Carter, the only Democratic president elected between 1968 and 1992, appointed none.) Yet what the Left could not win at the ballot box it won at the high court, again and again and again. It did this by a tremendously successful propaganda effort to reframe the Constitution as a “living Constitution.” Let’s give it a more accurate name: the Imaginary Constitution.
The actual Constitution is a source of frustration and vexation to progressives because it does not mandate the things they want to require while it does grant clear and unmistakable protection to things they actively hate (guns) or desire strongly to restrict (speech). Their solution, going back decades, is simply to promulgate an Imaginary Constitution more to their liking. When Senator Kamala Harris says, as she did on MSNBC, that should President Trump appoint another originalist to replace Justice Kennedy, “we’re looking at a destruction of the Constitution of the United States,” it makes sense only if you understand that she’s not talking about the actual Constitution. She’s talking about the Imaginary Constitution.
Many of those ten Republican Supreme Court appointees got swept up in the mass delusion. In the Imaginary Constitution dreamed up by progressives, with all of its enticing penumbrae of doubt and mystery, there is an established right to privacy, which somehow means the right to an abortion. In the Imaginary Constitution, the First Amendment concludes with the parenthetical phrase “(except for hate speech and political speech funded by corporations).” In the Imaginary Constitution the phrase “a well-regulated militia” doesn’t simply explain why the right to bear arms is necessary; it’s meant to give government the power to remove that right by excluding citizens from a militia in the first place.
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The editorialists at the New York Times thundered that Kennedy’s retirement is so “crushing” that it:
sends a stark message to the tens of millions of Americans who have long turned to the court for the vindication of many of their most cherished rights and protections: Look somewhere else. That place is the ballot box. So show up and vote.
To tighten up that verbiage, the “stark message” the Times wants to send is “vote.” Is that supposed to sound scary? What is “stark” about voting? Voting is how we are supposed to resolve things. Voting — for a Republican Senate, for a Republican president — is in fact how we got to the point where the Supreme Court might actually turn boringly constitutionalist. If that happens, responsibility for deciding most issues would go right back where it belongs: the people.
The Democrats tell us they’re the party of the people. If so, they have little to fear.
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"The Constitution contains no clause saying, “Allowable with any president except Trump.”
The Democrats tell us "We are all doomed" !
Great!
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They want "Floating, which ever way the wind blows" type laws.
As Scalia said:
If you believe, however, that the Constitution is not a legal text, like the texts involved when
judges reconcile or decide which of two statutes prevail; if you think the Constitution is some
exhortation to give effect to the most fundamental values of the society as those values change
from year to year; if you think that it is meant to reflect, as some of the Supreme Court cases say,
particularly those involving the Eighth Amendment, if you think it is simply meant to reflect the
evolving standards of decency that mark the progress of a maturing society — if that is what you
think it is, then why in the world would you have it interpreted by nine lawyers? What do I know
about the evolving standards of decency of American society? I’m afraid to ask.
If that is what you think the Constitution is, then Marbury v. Madison is wrong. It shouldn’t be
up to the judges, it should be up to the legislature. We should have a system like the English —
whatever the legislature thinks is constitutional is constitutional. They know the evolving
standards of American society, I don’t. So in principle, it’s incompatible with the legal regime
thatAmerica has established.
Secondly, and this is the killer argument — I mean, it’s the best debaters argument — they say in
politics you can’t beat somebody with nobody, it’s the same thing with principles of legal
interpretation. If you don’t believe in originalism, then you need some other principle of
interpretation. Being a non-originalist is not enough. You see, I have my rules that confine me. I
know what I’m looking for. When I find it — the original meaning of the Constitution — I am
handcuffed. If I believe that the First Amendment meant when it was adopted that you are
entitled to burn the American flag, I have to come out that way even though I don’t like to come
out that way. When I find that the original meaning of the jury trial guarantee is that any
additional time you spend in prison which depends upon a fact must depend upon a fact found by
a jury — once I find that’s what the jury trial guarantee means, I am handcuffed. Though I’m a
law-and-order type, I cannot do all the mean conservative things I would like to do to this
society. You got me.
Now, if you’re not going to control your judges that way, what other criterion are you going to
place before them? What is the criterion that governs the Living Constitutional judge? What can
you possibly use, besides original meaning? Think about that. Natural law? We all agree on that,
don’t we? The philosophy of John Rawls? That’s easy. There really is nothing else. You either
tell your judges, “Look, this is a law, like all laws, give it the meaning it had when it was
adopted.” Or, you tell your judges, “Govern us. You tell us whether people under 18, who
committed their crimes when they were under 18, should be executed. You tell us whether there
ought to be an unlimited right to abortion or a partial right to abortion. You make these decisions
for us.” I have put this question — you know I speak at law schools with some frequency just to
make trouble — and I put this question to the faculty all the time, or incite the students to ask
their Living Constitutional professors: “Okay professor, you are not an originalist, what is your
criterion?” There is none other.
Devolving is more like it !
I know a large number of really good people that would think they had died and were knocking on the Pearly Gates if the Supreme Court Justices became boring Constitutionalists.
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Voting is a major deal, and it is sad so many choose not to exercise their right to vote … yet if one does not educate themselves on the issues .. their vote can be manipulated through talking points that fit an agenda, coming from both sides..
Voting is a big deal to me, and my (not so) lil man will be eligible to vote this November .. we are already discussing the issues and the pros and cons of candidates in the upcoming Senate race -
I must temper my thoughts on an outsider running in Montana for a position that needs to filled by a Montanan [not a left coast land developer transplant with an (R) next to his name] .. in an attempt not to influence my sons vote!
Ooops I almost began to rant : )
They should have one of those Man/Women on the streets that asks people who and why they voted for the person. Most might forget the name of the one they voted for. It wasn't written down so they could choose the right name again.