Federal Judiciary

'While everyone recognizes that there are problems with our immigration system in this country,' Elizabeth Wydra of the progressive Constitutional Accountability Center tells NPR, 'my perspective is: Let's try to fix this through legislation and not tinker with the genius of our constitutional design.'

#ad#But wait a second. Progressives love to tinker with the constitutional design. They simply do it by stealth, appointing Supreme Court justices such as Elena Kagan, who, her testimony notwithstanding, everyone knows will treat the Constitution like Felix the Cat's magic bag; when she searches the document hard enough, you know she'll find what she's looking for.

But when conservatives who talk about reverence for the Constitution also want to update it in a way that is actually consistent with the 'genius of our constitutional design,' they are hypocrites and radicals.

Liberal devotees of the 'living Constitution' always made a fair point. The Founding Fathers never envisioned a world with jet planes, split atoms, stem-cell therapies, one-click porn, or MTV's Jersey Shore. Similarly, the ratifiers of the 14th Amendment would be stunned to learn, in July of 1868, that they had just created an adamantine right for homosexuals to marry one another and receive state benefits to boot, as a federal judge in California recently decided (overruling, I might add, the will of California voters).

Hence, liberals claim, we need an evolving Constitution that, as President Obama writes in The Audacity of Hope, 'is not a static but rather a living document, and must be read in the context of an ever-changing world.' But as legal analyst Ed Whelan has noted, this 'living document' argument is a straw man. Of course justices must read the document in the context of an ever-changing world. What else could they do? Ask plaintiffs to wear period garb, talk in 18th-century lingo, and only bring cases involving paper money and runaway slaves?

The issue is not whether the world is ever-changing, but whether judges should treat the Constitution as ever-changing to meet their own agendas and desires, often over the lawfully expressed preferences of voters, legislators, and the Founders.

Still, if the Constitution is unclear or inadequate, what's a strict constructionist to do? Propose changes, and you're dubbed a hypocrite and a radical for wanting to 'tinker with the genius of our constitutional design.' Or else you're guilty of hypocritical conservative judicial activism.

The relevant fact is that central to the genius of the Constitution's design are the mechanisms to change it. That process is arduous, requiring long and deliberate debates at the national and state levels. (In over two centuries, thousands of amendments have been proposed, 33 have been approved by Congress, and only 27 have been ratified by the states. That's not tinkering, that's craftsmanship.)

When one discusses the Constitution on college campuses, students and even professors will object that without a 'living Constitution,' blacks would still be slaves and women wouldn't be allowed to vote. Nonsense. Those indispensable changes to the Constitution came not from judges reading new rights into the document but from Americans lawfully amending it.

From birthright citizenship and gay marriage to flag-burning and gun rights, I trust the American people to change the Constitution when necessary (after lengthy debate) more than I trust five out of nine unelected justices with lifetime tenure, hiding behind closed doors and away from TV cameras.

What are the opponents of 'tinkering' afraid of? I suspect sullying the genius of the Founders takes a distant backseat to their real fear: losing a fair fight.

-- Jonah Goldberg is editor-at-large of National Review Online and a visiting fellow at the American Enterprise Institute. © 2010 Tribune Media Services, Inc.

Full post as published by Bench Memos - National Review Online on August 11, 2010 (boomark / email).