President Trump reportedly is set to appoint Judge Amy Coney Barrett to the Supreme Court on Saturday. Barrett is eminently qualified but will be “controversial” nonetheless, as the Democratic senators scour her seemingly exemplary life in a desperate attempt to justify their inevitable opposition. Whatever they come up with, it’s little more than a cover for the fact that the Democrats prefer judges who adhere to “living Constitutionalism” instead of Barrett’s originalism.
“Living Constitutionalism” refers to a judicial method of weighing a case where the strictures of the U.S. Constitution are, well, more malleable than perhaps what an originalist would find. So it allows a Justice to find a right to same-sex marriage embedded in a document that was written by men who would have thought the idea absurd at best. And it allows a Justice to discover a “right to privacy” in the penumbras and emanations of other rights actually mentioned in the founding law of the land.
What living Cons often don’t seem to consider, however, is that, after turning the law into clay instead of stone – the better to spin it into whatever form one likes – the potter might change before the clay is finally baked. When it’s 5 or 6 conservative judges on the Court, Democrats should be thankful these judges adhere to a stonier Constitution. Tougher to chip off marble and granite than spin mud.
When living Cons disagree on a question of a law’s constitutionality, doesn’t the difference inevitably become a question of preferred outcomes? If you can find rights wherever you like, isn’t it then the case that where you don’t find rights, it drills down to the fact that you simply preferr the other outcome?
For example, the late Ruth Ginsberg frequently found in favor of copyright holders, including studio behemoths Disney, Time Warner, and Universal, in disputes with start-ups or independent publishers, such as in the landmark copyright case Eldred v. Ashcroft, for example.
In Eldred, Justices Breyer and Stevens, both living Cons who frequently vote[d] with Ginsberg on major cases, dissented from Ginsberg majority opinion. They found constitutional violations in an extension of the copyright term.
Whether Breyer and Stevens were correct or not is not the point here. Instead, that Ginsberg failed to see a constitutional violation suggests she didn’t because she preferred an outcome in favor of the corporate behemoths who lobbied for a longer copyright term (the better to protect the cash flo- er, the integrity of their creations).
Ginsberg, corporate stooge?
How else am I to interpret it, when she so frequently ruled in their favor? If the Constitution is alive, why didn’t she kill such oligarchism?
Fortunately, Barrett – or whomever Trump selects – will issue rulings with a stronger foundation: using the actual meaning of the law, not what she – or he – wishes the law meant.