California law professor Goodwin Liu appears today before the Senate Judiciary Committee, as a nominee for an appeals court judgeship.
Someone needs to ask him if he’d like an America without a Constitution.
Honestly, that’s the America we’d have if those who wrote, supported, advocated and voted for the ratification of the Constitution looked at it the way he does.
Liu has stated that “The question … is not how the Constitution would have been applied at the founding, but rather how it should be applied today … in light of changing needs, conditions and understandings of our society.”
Let’s ask the professor from University of Berkeley (why am I not surprised) a question: Would the Constitution ever have been ratified if those who had ratified it held that view?
Does anyone honestly think they said “Vote for this Constitution. Don’t bother reading it, because what it means will change and we can say it means whatever we want it to mean later?”
I’ve heard Supreme Court Justice Scalia make this point against those who think the Constitution is a “living, breathing document” that changes in meaning from time to time. He argues that no one would’ve ever adopted a Constitution if they thought that what it said was not what it meant.
The founders’ Constitution was quite simple. If you don’t like the law, elect people to change the law. If you want to change the Constitution, amend it.
But holding the view that the Constitution can gain meanings that it never had by following the Berkeley teacher’s idea that what the Constitution actually says can be assumed to mean what it doesn’t say simply because we say so is anti-Constitutional.
And I argue that no Constitution would ever have been ratified if it was understood to mean different things at different times to different people.
What would be the point of having an amendment process at all, if it was the founders’ intent to write a Constitution that changes on its own with each passing era?
That wouldn’t be needed. We’d just need 5 people in robes deciding that something written didn’t mean what it said, and announce that it suddenly meant something else. Done. Finito. Sound the lunch bell.
But, no! The fact that there is a specific amendment process shows that those who passed the Constitution realized that there would be changing circumstances and we might want to change what the Constitution actually says from time to time.
They in no way wrote a document whose words were so insignificant that five appointed Justices could decided that it didn’t mean what it said, and it meant things it didn’t say.
I’ll be watching Liberal Liu, and watching for his reaction to these points.
Because a “living” Constitution is a concept that would’ve killed the Constitution before it was ever born.
