The “Living Constitution” Is Dying: Long Live The Constitution

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Timothy Head Faith and Freedom Coalition
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The Senate dealt a crushing blow to the Constitution last week by confirming Neil Gorsuch. Democrats may have put a nail in our founding document’s coffin by insisting on a my-way-or-the-highway approach to filibuster rules. And conservatives couldn’t be happier as “Justice” Gorsuch is sworn-in today.

On February 10, 1997, the National Review published an op-ed by Justice Antonin Scalia titled “Vigilante Justices: The Dying Constitution”. Two decades ago, Scalia prophesied, “The American people have been converted to belief in The Living Constitution, a ‘morphing’ document that means from age to age, what it ought to mean. And with that conversion has inevitably come the new phenomenon of selecting and confirming federal judges, at all levels, on the basis of their views regarding a whole series of proposals for constitutional evolution.” Scalia went on, “By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all.” Scalia’s insight and foresight were published 19 years, almost to the day, before his death last February 13, 2016.

Scalia had witnessed Senate Democrats’ evisceration of Robert Bork in his confirmation hearings in 1987. He watched the crucible Justice Clarence Thomas had to endure in 1991. But could he have foreseen Senator Al Franken’s prodding of Justice Gorsuch on employment law or Senator Barbara Feinstein’s probing for Gorsuch’s views on the Second Amendment? Many accused Justice Gorsuch of evasion or obfuscation. But the reality is that he simply insisted on the ultimate non-sequitur in the Left’s line of questioning. In the Left’s entire line of judicial reasoning. Neil Gorsuch wanted no part in constitutional evolution. He insisted time after time that it does not matter what Neil Gorsuch believes about employment law, or the Heller decision, or religious litmus tests for immigrants. It matters only what the Constitution tells us informed by the Court’s precedents. And as Neil Gorsuch inched closer and closer to confirmation, the “Living” Constitution came closer and closer to breathing its last breath.

We can certainly debate the biggest winners of the 14-month saga surrounding replacing Justice Scalia. Was the biggest winner Donald Trump? Make no mistake about it, Trump’s ironclad campaign promise last summer, to nominate a replacement from a list of originalist judges, was the single biggest decision-point for millions of conservatives to vote for him last November. Perhaps Mitch McConnell was the biggest winner, after insisting within minutes of Justice Scalia’s passing that “the American people should have a voice in the selection of their next Supreme Court Justice.” McConnell never wavered. Any list of winners obviously has to include Neil Gorsuch himself. But without question the biggest winner in the yearlong marathon is the Constitution itself. But where the ‘who’s the winner’ argument turns upside down is that perhaps the Constitution is closer to being dead with Justice Gorsuch than ever before. And its prospects have never been better. Perhaps Justice Scalia’s greatest desire, or even his greatest legacy to American jurisprudence, was to kill the very document that he so loved.

We now live in the historic wake of one of the titans of American jurisprudence – better yet – human thought in Justice Scalia. As Antonin Scalia’s empty seat is filled by a newly cloaked Neil Gorsuch, let us all take heart that Justice Scalia’s vision may actually be taking shape. Our Constitution is dying. Long live the Constitution.