Persistent and perceptive readers will have detected a periodic ennui in these pages regarding the US Constitution. That Madisonian melancholia is less an indictment of the document itself than it is the broad belief in its almost supernatural powers. As I’ve mentioned many times, if our constitution is actually what makes our country, then Liberians must be quite impatient for its transformative effects in theirs.
But that isn’t to say it’s not a fine specimen of what it’s intended to be. That is, a governmental org-chart with job descriptions. And once you understand that relatively modest ambition, you’ll understand why even an excellent charter doesn’t cause a society of mestizos and muslims to live like one of angles and saxons. This in much the same way Chucky Cheese won’t make as much money as Apple, even if their corporate hierarchies are identical. Yet there’s a remarkable number of intelligent people who implicitly believe otherwise.
Though it’s not merely placing a document in context of its actual powers. Almost as if it were a piece of impressionist art, the Constitution is more like a mirror than a window. With readers routinely seeing only their own desires reflected in its penumbras. And that’s a real problem when one of those people get a black robe tossed over their head. A problem for us more than them, invariably.
That problem arising from the fact that the actual Constitution is largely results agnostic. Many amendments require or prohibit certain results, though amendments themselves are creatures of this very neutral process. A process that, if followed to the letter, does not in any way prohibit results that are unpalatable to liberals. Until Anthony Kennedy says otherwise, an amendment to the Constitution can not be unconstitutional…Except in India.
Though while reading an opinion piece today by AIPAC-American esquire, Cass Sunstein, it occurred to me, as I’m sure it must have previously, that the left actually sees the Constitution as results determinative. It’s not an org-chart, but a to-do list.
In the piece Cass, who was apparently given that name on purpose, takes a dim view of Scalia’s (and by extension Neil Gorsuch’s) originalist approach. Not because it fails any rational scrutiny, but because it could fail to produce liberal results. This, in a formidable display of unselfconsciousness, Sunstein calls “unprincipled.”
But originalism is just one of many possible approaches to the Constitution. If it is taken seriously, there is a good argument that it would produce results that most Americans would despise — and that any Trump nominee should be asked about.
For example, originalism could easily lead to the following conclusions:
* States can ban the purchase and sale of contraceptives.
* The federal government can discriminate on the basis of race — for example, by banning African Americans from serving in the armed forces, or by mandating racial segregation in the D.C. schools.
* The federal government can discriminate against women — for example, by banning them from serving in high-level positions in the U.S. government.
* States are permitted to bring back segregation, and they can certainly discriminate on the basis of sex.
* Neither federal nor state governments have to respect the idea of one person, one vote; some people could be given far more political power than others.
* States can establish Christianity as their official religion.
* Important provisions of national environmental laws, including the Endangered Species Act and the Clean Water Act, are invalid.
Certainly the founders would never have countenanced a system by which important provisions of environmental laws could be invalidated. But beyond the fact that the federal government already discriminates extensively on the basis of race without complaint from Sunstein, there’s the ludicrous proposition that the foundational basis of this country exists only as an expedient to contemporary and beyond liberalism. Thus you can’t take the words of the constitution literally because Kansans might ban the pill. Yes they might. And they were explicitly granted the right to make that decision. Self-rule is always most fervently opposed by those who advocate themselves-rule.
And of course it’s simply beyond neo-Bolshevik conception that empowered opposition could wield the same legal philosophy against them: if the results are ones many Americans would despise (like aggressive Muslim colonization) then whatever process facilitated that result (like non-European immigration) is unconstitutional. So playing by the rules is tossed in favor of playing by the results. A lot more people on the right could stand to absorb Sunstein’s lesson.