The Dying Constitution

 

By David K. Shipler 

              Conservatives like to deride liberals who believe in a “living Constitution,” which has stayed alive by applying its core principles to the evolving conditions of society. But the opposing view, that the Constitution must be interpreted only as the Framers supposedly intended, will not conserve anything. It will, if taken to the logical end now pursued by Republican extremists in legislatures and courts, strangle the founding document by cutting it off from the present, from the oxygen it needs to nourish the rights it is meant to preserve.

              The radicals on the right have formed a continuum of anti-constitutional movements that run from street thugs to election workers to politicians and to Supreme Court justices. Paradoxically, they cite the Constitution as their guide: the January 6 insurrectionists shouting their affection for a Constitution they’d obviously never read (in particular the Twelfth Amendment on Congress’s vote-counting process). Republican state legislatures organizing myriad ways to undermine the next elections. And the Supreme Court justices who are orchestrating an insurrection of their own by twisting the Constitution to fit their personal ideologies.

The “conservatives” in robes say they are keeping the Constitution as written, but they are actually making it all too malleable. They are turning it into a blank check for whatever policy they wish to inflict on American citizens, whether erasing women’s abortion rights, establishing in the public square a state-sanctioned Christianity (not Islam, for sure), or expanding practically everyone’s right to carry deadly weapons. All this has provoked accusations from the left that the Supreme Court is forfeiting its legitimacy, but the larger danger may be to the legitimacy of the Constitution itself.

Judge Gorsuch's "Magical Notion"

By David K. Shipler

            Late in the third day of Senate Judiciary Committee hearings on the nomination of Neil Gorsuch to the Supreme Court, Sen. Mazie Hirono of Hawaii summed up the judge’s picture of American jurisprudence with three words: “a magical notion.” She called his portrait of neutral, apolitical judges interpreting the law fairly and without personal bias a Norman Rockwell painting of the courts, as if he himself weren’t being promoted by the dark money of hidden billionaires, as emphasized by Sen. Sheldon Whitehouse in a tough interrogation.

            Through incisive questioning by Democratic senators (Republicans lobbed only softballs), Gorsuch stuck resolutely to his line that there were no “Republican judges or Democrat judges.” In this phrasing he repeatedly allowed his mask to slip, since the use of the noun “Democrat” as an adjective instead of “Democratic” is embedded in the lexicon of the right, designed to deny that opposition party the mantle of representing masses of citizens. He also took several opportunities to mention that judges appointed by “Democrat” presidents had joined him in opinions. In other words, the courts transcend politics.

            It would be a grand gift to the republic if it were always so. It often is, especially on lower courts, such as the Tenth Circuit Court of Appeals where Gorsuch has served for a decade, and which are bound by precedent. He and the two other judges on his panel relied on a particularly cruel precedent when they denied an autistic child payment for private residential educational services that the local school district could not provide. The earlier case in his circuit found that under the law, such schooling “must merely be ‘more than de minimus,’” Gorsuch wrote, adding the word “merely.”