Saturday marked the 229th anniversary of the ratification of the U.S. Constitution. It established the United States as the world’s first constitutional republic. We may be mere months from the end of America’s existence as such. 2017 could be the first year of a new, post-Constitutional era. If Hillary Clinton is elected president her choices of Supreme Court justices will tip the balance in favor of a Court that sees the Constitution as a “living document”, one that can be interpreted to mean whatever they need it to mean. On that day, the Constitution, already in exile, will cease to function as a constraint on government.
“A Bill of Rights that means what the majority wants it to mean is worthless.” -Antonin Scalia
The Bill of Rights, in particular, will be eroded to such an extent as to become meaningless. Rights favored by the new majority will be created out of whole cloth, while rights not favored, such as the right to bear arms, will be made virtually impossible to exercise. Consider this: The subject of marriage does not come up anywhere in the Constitution, but the tenth amendment says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” So anything not specifically mentioned in the Constitution, such as marriage, would seemingly be governed by that amendment. It establishes what is often referred to as “state’s rights”. When some states wanted to outlaw same-sex marriage, and some states wanted to legalize it, the Supreme Court stepped in with the Obergefell v. Hodges and legalized ‘gay marriage’ nationally. Many social conservatives objected to the decision on moral and religious grounds, setting those objections aside the decision created a number of problematic consequences for the Constitution. Many, including Justice Roberts, believe the majority in that ruling used arguments with no constitutional basis:
“Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be”
A ruling based on what the majority thought the law should be seems to be exactly what happened. The Court invented an individual right at the expense of the rights of the states. The tenth amendment seems to exist only at the whim of the majority. Impatient with the legislative process that requires consensus building, activists used the Court to do what they could not wait for the state legislatures to do. Now they have the law but necessarily a consensus. Because the ruling was based on emotional arguments more than constitutional ones, there is now no constitutional argument to place any limits on marriage between adults, not based on the sex of the participants, not based on the number, nor kinship nor likely even age. Polygamy laws could be struck down tomorrow, were the cause popular enough. What would be the argument against?
What other amendments are as disposable as the tenth? What if the courts because of some public pressure due to security decided to give similar treatment to the fourth amendment? Our right to privacy would be gone. Proponents of so-called common sense gun control have already called for legislation (no fly no buy) that would simultaneously abridge our second, fifth, and fourteenth amendment rights. What if the Court decided to do what a powerful voting bloc such as the anti-gun lobby demanded?
“As long as judges tinker with the Constitution to ‘do what the people want,’ instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically.” – Antonin Scalia
Another example of how SCOTUS justices chose to use extremely contorted logic to arrive at the decision they wanted was National Federation of Independent Business v. Sebelius, the ruling that effectively legalized the Affordable Care Act, A.K.A. Obamacare. This allowed the government to compel its citizens to engage in commerce, whether they chose to or not, whether they felt like they needed the product or not. If you remember your grade school history, the American revolution was fought to end this sort of thing. A government that can compel its citizens to spend money, determine how much, and on what does not serve the populace, it rules it.
The Constitution was meant to act as the guardrails of our government. It was meant to act as a constraint to the federal government while protecting the rights of the states and individuals. The idea of the Constitution as a ‘living document’ then makes about as much sense as playing football on a field with no sidelines, with no objective means of determining what is in or out of bounds. Liberal justices, believing that the Constitution must adapt to the present society have little compunction against following only those parts of it that are convenient to their objectives while ignoring others. When the Constitution gets to the point where it can mean anything the justices need it to mean, it will at once come to mean nothing. We will be living in a post-constitutional America. The three Supreme Court justices that our next president is expected to appoint, if they are liberal, activist judges, will be more than enough to effectively end the era of the United States as a constitutional republic.
On Saturday, we lost a truly great jurist in Antonin Scalia. Justice Scalia believed in interpreting the Constitution not as we would have it, but as the framers understood it. He was an “originalist”. He is considered to be a conservative among Supreme Court justices. It’s strange that a justice that believed the Constitution is an unmalleable document should be considered conservative, as if some other way of seeing it was just as valid. Scalia knew that the documents power laid in it immutability. He understood that the meaning of the Constitution could be interpreted, but could not be changed to fit out passions and our prejudices at the moment. Can what was unconstitutional yesterday be constitutional today simply because we wish it to be? Scalia knew the answer.