Amy Coney Barrett breezed through her confirmation hearings a couple of weeks ago. Now, it looks like the Senate will have the votes to confirm her on Monday. This is excellent news for fans of limited government and the Constitutional order. Judge Barrett has demonstrated that she has the perfect blend of temperament, humility, intellect, and ideology to serve on the country’s highest Court.
The Founders had a few basic principles in mind when they designed our system of government. One of the core principles was the idea that free citizens should be empowered to govern themselves. This was the idea Abraham Lincoln eloquently described as “government of the people, by the people, and for the people” in his Gettysburg Address. To serve this end, the Founders also believed that government power should remain as local as possible. The US Constitution spells out the roles and powers of the federal government. But just as importantly, the Constitution also spells out things the federal government is restricted from doing. These protections, which Barack Obama famously derided as “negative liberties”, are at the heart and soul of self-government. Without them, a massive, powerful, and all-encompassing central government could enforce an oppressive hegemony. Individual citizens would have little say in their own affairs.
To big government progressives who believe in top-down technocratic leadership, these ideals are anathema. They rightly see the Constitution as a barrier to implementing and enforcing the grand-scale social engineering they deem superior to leaving society’s overall direction up to the collective choices of individuals. They argue that the Constitution must grow and evolve with the times. That is must be seen as a “living document” and not just words on a dead piece of paper. In this way, progressives argue, the Constitution can change to meet the evolving needs of the people.
Of course, the Founders fully anticipated changes to the Constitution would be necessary over time. Which is why they explicitly created a method for doing so! In fact, the process for amending (i.e. changing) the Constitution is built right into it. The problem with the amendment process for progressives is the bar is set extremely high for doing so. After all a change to the Constitution amounts to a change in the fundamental rules of the game. As such, the Founders deemed any Amendments should have near universal acceptance. Constitutional Amendments require super-majorities in the House and Senate to approve of them, as well as a super-majority of the State legislatures. (Yes, I know there are other mechanisms, but they are equally burdensome and this is the one that has been used the most often by far.) This ensures that any change enshrined in the Constitution has overwhelming support.
For this reason, progressives strongly prefer the idea of the Constitution as a “living” document. With the Supreme Court free to reinterpret and insinuate the meaning of the words actually in the Constitution as the Justices see fit, a whole new avenue opens up for advancing an agenda that isn’t particularly popular. It no longer becomes necessary to get an overwhelming majority of the country to agree with your objectives. You just need to convince a simple majority of 9 lawyers to go along.
And of course, those 9 lawyers then become absolutely crucial to setting public policy. Those lawyers, and who gets to choose them, can determine the course of the country for a generation under the “living document” vision. And the justices, once seated, are completely unaccountable to the voters. Clearly, this is not what the Founders had in mind and is completely at odds with the ideals of self-government. The Founders would no doubt be appalled to see how contentious and political Supreme Court appointments have become. If the Court were apolitical as intended, it would be a ho-hum occurrence.
Barrett will of course be replacing the late Ruth Bader Ginsburg on the Court. Ginsburg led a noteworthy life and was a liberal icon. However, she was absolute abomination of a Supreme Court Justice. Ginsburg fully embraced the activist vision of the Court and the “living document” interpretation of the Constitution. Ginsburg even took judicial activism a step further, arguing that the Court could and should take the laws of other countries into consideration when deciding cases. To Constitutional conservatives and believers in self-government, this is outright heresy. American citizens would be held to legal standards devised in foreign countries by governments they had zero say in choosing and which are completely unaccountable to them. Hopefully, the addition of Amy Coney Barrett will restore the Court to it’s proper role.