The Constitution Matters: It Means What It Says

The Constitution and the Second Amendment are in the spotlight this week on two fronts. First is that oral arguments are being held in the McDonald v Chicago case to possibly apply the holding in Heller to the states.

In addition, Senators are beginning their evaluation of the judicial nomination of Berkeley professor Goodwin Liu to the Ninth Circuit Court of Appeals in a vote that will tell a great deal about Senator Reid’s adherence to Constitutional principles such as those specified in the Second Amendment.

Senator Reid has a terrible record on judicial nominees to the U.S. Supreme Court. In DC v Heller, there were four dissenters from the holding that the right to bear arms is an individual right. Harry Reid had a chance to vote on three and he voted for each one – Breyer, Souter and Ginsburg. Harry Reid has a chance to vote on four of the majority justices, and he voted against three of them – Thomas, Alito and Roberts. If Harry Reid had been successful in defeating any of these three, Heller would have been in jeopardy. That’s six out of seven bad votes on the Supreme Court.

Four of those bad votes were cast in his very first term, when my primary opponent Sue Lowden was his loyal contributor.

There will be hearings on professor Liu, but I am specifically interested in a particular book he co-authored on jurisprudence entitled “Keeping Faith with the Constitution.”

Ominously, early in its text, the book contains an statement that lacks credibility in our current context. Liu writes:

“Throughout our history, political leaders have taken seriously their sworn duty to uphold the Constitution.”

Unfortunately, that is something that isn’t true today. We are experiencing a historic time when entire industries are propped up by government seemingly arbitrarily and secretly picking winners and losers. Some industries are in danger of socialization, such as health care.

In “Keeping Faith,” Liu attempts – unconvincingly in my opinion – to argue that there is some middle ground between judicial activism and a judicial philosophy of attempting to interpret the Constitution with deference to original intent.. Ironically, he calls the middle ground “constitutional fidelity.” As if the title makes it true.

Liu writes:

“We use the term constitutional fidelity to describe this approach. To be faithful to the Constitution is to interpret its words and to apply its principles in ways that sustain their vitality over time. Fidelity to the Constitution requires judges to ask not how its general principles would have been applied in 1789 or 1868, but rather how those principles should be applied today in order to preserve their power and meaning in light of the concerns, conditions, and evolving norms of our society. In this book, we develop a different approach to interpretation that respects the endurance of our written Constitution and explains how its text and principles retain their authority and legitimacy over decades and centuries.”

Professor Liu’s constitutional fidelity philosophy seems to be rooted in the idea that proper interpretation of our constitution requires a continual updating of its meaning for the purpose of achieving ‘authority’ and ‘legitimacy.’ That’s sort of like changing your children’s bedtime so they don’t question your ‘authority’ and ‘legitimacy’ as a parent. Establishing your legitimacy and authority is a function of sticking to your rules. In government, it is moving those rules without legislative action that leads to illegitimacy and eventually, tyranny.

Professor Liu continues:

“Preserving the document’s meaning and its democratic legitimacy requires us to interpret it in light of the conditions and challenges faced by succeeding generations.”

Again, I could not disagree more. If each generation gets to re-write our Constitution based on the challenges they face, then which generation is in charge in any given point in our society? My generation, or my father’s generation? Which generation’s interpretation is to determine how our society is to be governed? That sounds like a political decision to be settled by elections and legislative debate – not the unelected judiciary.

The underlying current of Liu’s text is that there is very little enduring about the Constitution, rather a generational redefinition that continually changes. I disagree – I believe that Justices must strive to identify the original intent in the United States’ founding document as specifically that part which is most enduring.

Why? Because as Constitutional conservatives, we see America as a country of destiny, just as in our faiths we sense a destination for ourselves – we sense something fixed and tangible and which is good. We don’t run from our destination, rather as people we seek to discern it and chase it down. There are things that endure in this world. There is right and there is wrong – and there is truth.

In the Bill of Rights, these enduring truths are made explicit. There are certain God-given inalienable rights that are enumerated, such as the right to free speech and to assemble, and the right to bear arms in self-defense and against tyranny.

Having established his “generational test,” Liu goes on to explain the historic Second Amendment rights decision Heller as itself a product of judicial “interest-balancing.” This is his most troubling reasoning – one that sets up Heller for eventual reversal.

In his analysis, Liu first acknowledges the Constitutional debate in Heller:

“The majority read “the right of the people” to refer to a right possessed by individuals acting on their own, akin to the Fourth Amendment “right of the people to be secure . . . against unreasonable searches and seizures.” And it read the phrase “keep and bear Arms” to refer generally to the possession and use of weapons, including for hunting and individual self-defense.

“The dissenters, by contrast, read “the right of the people” to protect individuals engaged in collective action through participation in the militia, akin to the First Amendment “right of the people peaceably to assemble,” which also protects a collective activity. And it construed “keep and bear Arms” as a reference to military use of weapons.”

But after a discussion of the court’s supposed “receptiveness” to other gun laws – laws which were not squarely under review – Liu retreats to a new position. He argues that the majority decision was really just a balancing of modern day societal interests.

Although the majority and the dissenters ultimately disagree on the validity of the District of Columbia handgun ban, the difference between the two sides is not that one engages in interest balancing while the other does not. It is that one side does so “explicitly”

Professor Liu essentially puts the essential holding in the case – that the right to bear arms is an individual right – on a moving ice floe and pushes it out to sea at the mercy of societal tides. He knows exactly what he is doing as he does so. He is setting it up for reversal.

This is just one example from his book. If you read it all, you will see that Liu’s text repeatedly seeks to degrade judicial philosophies of restraint, in an attempt to give license to judicial activism, by saying essentially “everyone does it.” Even the majority in Heller.

As a candidate for U.S. Senate, I would take this sort of writing into account in my questioning of any judicial nominee. I look forward to hearing what professor Liu has to say at his confirmation hearings. Absent a confirmation hearing that essentially reverses the premise of this writing in defense of judicial activism, I would certainly expect Senator Reid to protect the Constitution and to vote no on this nomination.