THE COURTS HAVE GONE TOO FAR: Michael M. Uhlmann

Liberals and conservatives have been fighting about the implications of expanded judicial power for nearly four decades. The dispute revolves around the concept of "the living Constitution," a term coined by liberals to weaken the authority of constitutional text and tradition, thereby freeing judges to become active agents of social reform. This is necessary, they say, to overcome the lassitude or indifference of the people's representatives.

Conservatives believe that courts are ill-suited to the task of social reform and that "the living Constitution" is little more than a formula by which judges equate their own ideological preferences with the rule of law. One may share his or her preferences for policy reasons, but if judges are free to disregard constitutional text and tradition as the ground for their decisions, why should their opinions be considered as binding authority? ...

Conservatives believe that judicial activism undercuts the rationale for having a written constitution to begin with. No constitution, to be sure, can work like a mathematical formula; it must have flexibility in its joints. Rules of interpretation, however, are not an open-ended invitation to judges to make it up as they go. Long before liberals invented the "living" Constitution, the Constitution adapted itself quite nicely to social change and secured rights without doing violence to its original principles.

Being conservative on matters of constitutional interpretation does not mean that one is wedded to some antediluvian concept of society, or that the Constitution is good just because it is old. The Constitution was designed, however, to ensure that its meaning would be informed by the deliberate sense of the people; it is not a piece of Playdough to be bent and shaped by judges to comport with their own ideas of social progress. A written constitution simply cannot accommodate every demand made upon it by contemporary policy advocates, whether of the right or left. And when it cannot, the remedy lies not in free-wheeling judicial modification, but in the procedures for constitutional amendment.

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posted by Eve at 4:25 PM VOTE

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