Zombie Justices Reign Supreme

Bork’s warning of apocalypse is upon us

by Edward Whelan | Updated 14 Jul 2015 at 12:41 PM

If five U.S. Supreme Court justices can concoct a federal constitutional right to same-sex marriage, what else might they impose? Just about anything on the Left’s agenda.

Until barely a decade ago, the laws of every state had always defined marriage as the union of a man and a woman. That was true when the Constitution was first established, and it was true when the 14th Amendment was ratified in 1868. The intelligent citizen Bork-Sidebar-15will reasonably wonder how five Supreme Court justices could have ruled two weeks ago that these state laws violate the 14th Amendment and that there is a federal constitutional right to same-sex marriage.

The short answer: Those five justices were just making it up.

Oh, to be sure, Justice Anthony Kennedy’s majority opinion tries to dress things up in the sort of legal-sounding jargon designed to mystify non-lawyers. But Kennedy and the four liberals who joined his opinion are all supporters of the misnamed “living Constitution” approach to constitutional decision-making.

Proponents of the “living Constitution” claim that freewheeling judicial authority to invent new constitutional rights is somehow needed to adapt our country to modern circumstances. But that claim ignores the broad play that the Constitution gives to the democratic processes to revise laws in light of changed conditions and perceptions. (Witness, for example, the dozen or so states that legislatively enacted same-sex marriage.) Even worse, by entrenching in the Constitution whatever rights five justices think important, living-constitutionalism deprives future generations of Americans of the very flexibility that it falsely claims to advance.

At bottom, the “living Constitution” approach is nothing more than an excuse for five justices to indulge and impose their own policy preferences in the guise of newly discovered constitutional rights. As one astute critic has put it, the “living” Constitution is really a “zombie” Constitution, with the corpse of the real Constitution reanimated with the Left’s favored positions.

It is instructive to observe how radically unstable living-constitutionalism is. In 1972, two gay activists filed an appeal in the Supreme Court claiming that a state law defining marriage as a male-female union violated the federal Constitution. In Bork-Sidebar-13dismissing the appeal “for want of a substantial federal question,” a unanimous Supreme Court treated the claim as so frivolous, so clearly devoid of merit, that there was no point in bothering with briefing and oral argument. Among the justices who joined in that dismissal were three of the most aggressive left-wing living-constitutionalists ever — William O. Douglas, William Brennan, and Thurgood Marshall.

Indeed, a mere decade ago, a living-constitutionalist law professor who supports same-sex marriage — Cass Sunstein, later the regulatory affairs czar in the Obama White House — testified to Congress that it was inconceivable that the Supreme Court would decide there is a constitutional right to same-sex marriage.

How is it that five living-constitutionalist justices would suddenly find compelling and meritorious the same claim that their more extreme ideological predecessors regarded as frivolous four decades ago? There’s no doubt that the public’s position on issues related to homosexuality changed considerably over that period, and those changes would reasonably be expected to be reflected in revised laws and policies. But the 14th Amendment did not change one iota

What happened, I would submit, is simple: Same-sex marriage rose high on the Left’s agenda. Five justices decided that it was a good idea. And they figured they had ample political cover to impose it on the American people as a supposed constitutional right.

One other event in the years between 1972 and 2015 deserves mention: the successful smear campaign against President Reagan’s nomination of Judge Robert H. Bork to the Supreme Court in 1987. Folks on the Left harshly opposed Bork because he was an eloquent critic of living-constitutionalism and, especially, because they feared, with good reason, that he would vote to overturn the 1973 decision in Roe v. Wade that invented a constitutional right to abortion. After the defeat of the Bork nomination, Reagan ended up appointing Kennedy to the vacancy. And, among his many living-constitutionalist extravagances, Kennedy wrote 5-4 majority opinions retaining Roe (in 1992), striking down the federal Defense of Marriage Act (two years ago), and, now, inventing a constitutional right to same-sex marriage.


The broader lesson for the long-term, I would submit, is that there is no rewriting of the Constitution that is beyond the bounds of the possible if something matters to the Left and there are five or more living-constitutionalist justices on the CouBork-Sidebar-14rt. Indeed, Justice Ruth Bader Ginsburg and Justice Stephen Breyer illustrated the point in another case two weeks ago, in which, after more than 20 years each on the Court, they suddenly called into question the constitutionality of the death penalty.

The list of possible living-constitutionalist innovations is endless: Voting rights for illegal aliens; taxpayer funding of abortion and of sex-change operations; mandatory equalized spending for public-school districts; a right to welfare payments above the poverty line; and a right to have multiple spouses.

Other innovations might also severely impair existing rights. Legal academics are enamored of restrictions on so-called “hate speech”— an amorphous category that is already expanding to include criticism of racial preferences or use of male pronouns to refer to a man who thinks he’s a woman. The First Amendment, as long construed, would bar the government from imposing such restrictions. But that’s no barrier against five willful justices. Ditto for a robust understanding of religious liberty and for Second Amendment rights to firearms.

One good (if admittedly imperfect) way to protect against these threats is to elect a president in 2016 who is determined to appoint textualist justices rather than living-constitutionalists. Given the ideological orientations of the two parties, only a Republican president might genuinely have that commitment. Four of the sitting justices are between 77 and 82 years old, and three of those four — Kennedy, Ginsburg, and Breyer — are living-constitutionalists. If the next president is able to replace these justices with sound nominees, then our Constitution might be rescued from yet further assaults.

Edward Whelan is president of the Ethics and Public Policy Center and a regular contributor to National Review Online’s Bench Memos blog. He is a former law clerk to Justice Antonin Scalia.

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