No to the Progressives’ “Living Constitution”

“The Constitution is not an organism; it’s a legal text, for Pete’s sake,” Former Justice Antonin Scalia said. “Unless you give [the laws] the meaning of those who enacted them, you’re destroying democracy.”

No to the Progressives’ “Living Constitution”

Due to the death of Antonin Scalia and pursuant to our Constitution, President Obama has nominated Merrick Garland, a federal judge since 1997, to the Supreme Court. Senate Majority Leader McConnell (R-KY) immediately foreclosed any hearing for Garland preventing him from becoming a member of the court. Hence, political gamesmanship commenced and Democrats launched a crescendo of demands and accusations against Senate Republicans. “Fill the vacancy, it’s your duty” was one of the comments resounding off the Senate walls. Of course, Democrats forget when then-Senator Joe Bidden (D-DE) warned President Herbert Walker Bush (R-TX) in 1992 to not make appoints to the Supreme Court during the “political season.” Oh, how the times have changed.

Observing these accusations and the counter-verbiage, Bob Woodward of the Washington Post astutely concluded, “This is pure politics.” Further, knowing the Constitution does not require the Senate to hold hearings, Woodward concluded, “This is total hypocrisy by both parties.”

This appointment, however, is much more than political hypocrisy. Hidden from the public is an enormous issue of great constitutional importance. Progressives and Democrats have concocted and supported a “living Constitution” for years. Merrick Garland will most likely join four other members of the Court, who adhere to this concept, which perverts our separation of powers between the President, Congress and the Supreme Court.

What is the concept of a “living Constitution?” Justice Antonin Scalia, in a 2010 speech at the University of Richmond, explained how the judges on the Supreme Court have usurped enormous powers by creating the “living Constitution.”

“Under the guise of interpreting the Constitution and under the banner of a living Constitution, judges, especially those on the Supreme Court, now wield an enormous amount of political power,” continued Scalia, “because they don’t just apply the rules that have been written, they create new rules.”

Scalia strongly opposed the “living constitution,” which expands the court’s power from deciding if a law violates the restraints of the Constitution to the Supreme Court becoming lawmakers. Please remember, the Constitution vested the law-making authority only with Congress – the Senate and the House of Representatives. Alexander Hamilton clearly rejects the court’s power to make law in The Federalist No. 78:

The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

In another criticism of the living constitution and the power-grab by the court, Scalia scolded, “Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.” In other words, persuade Congress to pass a law, which is their power and not the power of the Court.

Hence, this hypocrisy by both parties is really a monumental and a historical contest over the powers of the Supreme Court, which the media and most of the public fails to appreciate. Interestingly, Merrick Garland has few, if any, statements on the Progressives’ living Constitution. However, many of his decisions have appeared to accept the progressive creed, and the general consensus is he would join four liberal justices, which could have a major impact over the power of the Supreme Court and lower courts.

Throughout his court years, Scalia warned that rule-making by judges destroys democracy. “The Constitution is not an organism; it’s a legal text, for Pete’s sake,” he said. “Unless you give [the laws] the meaning of those who enacted them, you’re destroying democracy.”

Stopping the nomination of Merrick Garland is essential to our democracy.