Song of the open constitution

When the Supreme Court issued its decision in Lawrence v. Texas, asserting the existence of a constitutional right to homosexual sodomy, we noted that it was unsurprising. Thirty years ago the liberal constitutional scholar John Hart Ely wrote a classic law review article (“The Wages of Crying Wolf”) condemning the jurisprudence of Roe v. Wade, and Lawrence is in a sense only a few steps further down the jurisprudential arc that will end, as Justice Scalia noted in dissent, in the constitutional right to homosexual marriage, prostitution, bigamy, and adult incest.
In Lawrence, Justice Kennedy warmed up with an appropriately Whitmanesque sort of “Song of the Open Road” approach to constitutional interpretation:

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case [involving the Texas law against homosexual sodomy] involves liberty of the person both in its spatial and more transcendent dimensions.

I will leave it to you to find the parallel passages in Whitman, but in clunky, debased form, the echoes are striking.
On Monday Justice Scalia expanded on his dissent from the “Song of the Open Road” style of constitutional interpretation in a speech reported by the AP: “Scalia slams juvenile death penalty ruling.” The article quotes from Scalia’s speech:

In a 35-minute speech Monday, Scalia said unelected judges have no place deciding issues such as abortion and the death penalty. The court’s 5-4 ruling March 1 to outlaw the juvenile death penalty based on “evolving notions of decency” was simply a mask for the personal policy preferences of the five-member majority, he said.
“If you think aficionados of a living Constitution want to bring you flexibility, think again,” Scalia told an audience at the Woodrow Wilson Center, a Washington think tank. “You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That’s flexibility.”
“Why in the world would you have it interpreted by nine lawyers?” he said.

In response to a question following his speech, Scalia apparently laid the origin of the transformation of the Constitution into the “living Constitution” that magically yields results conforming to the personal beliefs of a majority of the justices at the feet of Earl Warren:

He blamed Chief Justice Earl Warren, who presided from 1953-69 over a court that assaulted racial segregation and expanded individual rights against arbitrary government searches, for the increased political role of the Supreme Court, citing Warren’s political background. Warren was governor of California and the Republican vice presidential nominee in 1948.
“You have a chief justice who was a governor, a policy-maker, who approached the law with that frame of mind. Once you have a leader with that mentality, it’s hard not to follow,” Scalia said, in response to a question from the audience.
Scalia said increased politics on the court will create a bitter nomination fight for the next Supreme Court appointee, since judges are now more concerned with promoting their personal policy preferences rather than interpreting the law.
“If we’re picking people to draw out of their own conscience and experience a ‘new’ Constitution, we should not look principally for good lawyers. We should look to people who agree with us,” he said, explaining that’s why senators increasingly probe nominees for their personal views on positions such as abortion.
“When we are in that mode, you realize we have rendered the Constitution useless,” Scalia said.

Scalia brilliantly identifies the problem of treating the Constitution as a “living Constitution.” Ironically, in the jurisprudence of the Supreme Court, the Constitution is alive only in its hands; treating it as clay to be molded to the needs of the moment is a privilege the Court does not accord to the executive or legislative branches. Why should this privilege reside only, if anywhere, in the hands of the least democratic branch?
The intellectual roots of the treatment of the Constitution as a “living” document lie in the Progressive era. In Constitutional Government in the United States, Woodrow Wilson argued:

The makers of our federal Constitution followed the [Whig] scheme as they found it expounded in Montesquieu, followed it with genuine scientific enthusiasm. The admirable expositions of the Federalist read like thoughtful applications of Montesquieu to the political needs and circumstances of America. They are full of the theory of checks and balances. The President is balanced off against Congress, Congress against the President, and each against the courts. Our statesmen of the earlier generations quoted in no one so often as Montesquieu, and they quoted him always as a scientific standard in the field of politics. Politics is turned into mechanics under his touch. The theory of gravitation is supreme.
The trouble with the theory is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton. It is modified by its environment, necessitated by its tasks, shaped to its functions by the sheer pressure of life. No living thing can have its organs offset against each other as checks, and live. On the contrary, its life is dependent upon their quick cooperation, their ready response to the commands of instinct or intelligence, their amicable community of purpose. Government is not a body of blind forces; it is body of men, with highly differentiated functions, no doubt, in our modern day of specialization, but with a common task and purpose. Their cooperation is indispensable, their warfare fatal. There can be no successful government without leadership or without the intimate, almost instinctive, coordination of the organs of life and action. This is not theory, but fact, and displays its force as fact, whatever theories may be thrown across its track. Living political constitutions must be Darwinian in structure and in practice.
Fortunately, the definitions and prescriptions of our constitutional law, though conceived in the Newtonian spirit and upon the Newtonian principle, are sufficiently broad and elastic to allow for the play of life and circumstance. Though they were Whig theorists, the men who framed the federal Constitution were also practical statesmen with an experienced eye for affairs and a quick practical sagacity in respect of the actual structure of government of the United States has had a vital and normal organic growth and has proved itself eminently adapted to express the changing temper and purposes of American people for age to age.

For more, see R.J. Pestritto’s discussion of Wilson’s seminal book in “Reading Woodrow Wilson.”
UPDATE: Reader Jeffrey King writes that he has transcribed Justice Scalia’s talk and made it available here.


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