FLASHBACK: A ‘living Constitution’ on the right? What would it look like if right-leaning judges ruled like lefties?
I immediately thought of one example from a few years ago: Judge Richard Posner published a book titled Not A Suicide Pact: The Constitution in a Time of National Emergency. Posner’s approach was based on the notion that the post-9/11 War On Terror was a fundamentally different sort of problem, and that the constitutional civil liberties doctrines developed by judges throughout the 20th Century weren’t suitable for this new world. In fact, when I interviewed Posner about his book, the idea that it was a “living Constitution” approach to the problem of terrorism and civil liberties came up in the interview.
Lastly, what about the Warren Court’s decisions on reproductive rights in Griswold v. Connecticut (striking down laws against birth control for married people), Eisenstadt v. Baird (doing the same for singles), and Roe v. Wade (finding a constitutional right to abortion)? These decisions were written against a background of hysteria about a “population explosion,” but now the United States — like many other countries — faces not a population explosion but a baby bust, with birth rates too low to sustain population, or to produce enough workers to fund retirement programs for the elderly. These decisions were also followed by a breakdown in family structures that continues to get worse. I can imagine a “living Constitution” conservative concluding that, whatever the logic of these decisions is, experience has shown them to be too flawed to survive.
But my advice to those on the left attacking originalist approaches is this: Be careful what you ask for, because you won’t like it if you get it.