The Supreme Court just overruled multiple democratically elected legislatures to impose its policy preferences on the country by a narrow 5-4 majority. Keep that in mind tomorrow if (IF!) the Supreme Court strikes down the Obamacare individual health insurance purchase mandate. Just remember that a 5-4 Supreme Court ruling that strikes down dozens of popular state laws that have been on the books for decades is another day at the office, but a 5-4 decision that overturns a recently passed and unpopular law that that involves an unprecedented use of federal power is the act of “radical partisans, happy to overthrow precedent to get to the party-politics result they want.” The operating rule seems to be that if Stephen Breyer is in the majority of a 5-4 decision then it is okay, but if he is in the minority it is an outrage. You have the same confusion from Andrew Cohen who writes that “The Constitution is what the justices say it is, nothing more and nothing less. But this law is clearly within Congress’ power.” Got that? The Constitution is what the Supreme Court says it is, except when Andrew Cohen disagrees with the Supreme Court. The Constitution then becomes whatever Andrew Cohen says it is. While this hypocrisy can be amusing, it also points at something real and problematic with how America’s center-left understands the idea of a “living constitution.”
Will Wilkinson has pointed out that, if you take the idea of a living and evolving constitution seriously, the outcomes (if not the reasoning) of the decisions of “conservative” Supreme Court Justices are perfectly justified on living constitution grounds. If we take living constitution jurisprudence to mean that judges reinterpret and change the Constitution in light of changing values and social structures, what does that tell us about recent Supreme Court decisions? Even if the HELLER decision’s critics are right, and the Constitution’s Framers intended to protect a “collective” right of gun ownership and that the federal government retained a power to disarm the citizenry, modern judges surveyed modern norms and the prevailing climate of opinion (as they understood it), and found an individual right to bear arms in the Constitution. If the living constitution can give birth to a right to abortion in 1973, there is no reason why it can’t give birth to an individual right to bear arms in 2008. If you take living constitution theory seriously as an explanation for constitutional development, ROE and HELLER are both examples of judges responding to changing climates of opinion and fitting their constitutional interpretation around social and political changes. Originalists would see it differently of course, but we aren’t talking about them.
What is true about the living constitution and the Second Amendment is just as true about the living constitution and the interstate commerce clause. Assume (as I do not) that the WICKARD decision entails conferring on the federal government the power to mandate that individuals purchase government -favored products that the individual might not want. Maybe the wonderful and saving flexibility of the living constitution allows the federal government to ban a farmer from growing wheat for home consumption in 1942 where the Framers might never have imagined such a federal power. But the same living constitution can presumably change to bar the federal government from forcing private individuals to contract with private companies to purchase a product they do not want. According to living constitution theory, both WICKARD and a ruling that struck down the Obamacare mandate would be examples of judges applying the living, evolving constitution to changing social conditions. Take what living constitution supporters tell us at face value. If the Supreme Court strikes down the Obamacare mandate tomorrow, then, from living constitution premises, the five “conservative” Justices are the (unwitting) appliers of the living and evolving constitution while the four “liberals” who vote to uphold the mandate will be reactionaries trying to apply a radicalized version of 1940s Supreme Court jurisprudence to our greatly changed society.
This irony will be missed if the Supreme Court votes to strike down the Obamacare mandate tomorrow. That is because, for most journalistic and political supporters of the living constitution, the Constitution can only evolve in the direction of their present policy preferences. The living constitution evolves in the direction of progress, and progress is the plurality opinion of those who market themselves as progressives. If the prime time hosts on MSNBC, the editorial board of the New York Times, and the Supreme Court Justices appointed by President Obama do not agree with the expansion of a right (in say, CITIZENS UNITED for instance), then the Constitution doesn’t really evolve. The historical process of progressive evolution has been hijacked.
If the Supreme Court overturns the Obamacare mandate tomorrow, the rage of those partisans of the living constitution who are also partisans of Obamacare will be more easy to understand if you keep two things in mind. First, their understanding of the living constitution is a rationalization of their will to power (though they are hardly alone in that.) Second, they sincerely believe that their superior understanding of social evolution transmutes the Constitution into whatever they want it to be at any given moment and that any adverse Supreme Court decision is a crime against the true meaning of that ever changing and ever convenient document.