Wednesday, July 09, 2003

Take Me Back to Chicago-Jonah's the Reggie Jackson of conservative punditry; he can look silly on occasion, but when he makes contact.... He sent one into the cheap seats with a post arguing for a dead constitution. He has an interesting comment that a static constitution gives our forefathers a vote on today. Letting the dead vote sounds a bit like Dailey-machine Chicago, but give Jonah a minute.
So if you don't want a living Constitution, you can almost hear Phil Donahue asking, do you want a dead Constitution instead? And the answer is, yes, of course, I want a dead Constitution. Now I certainly don't mean dead in merely the biological, i.e. literal, sense. And while I agree entirely with the complaints from the likes of Judge Bork and Justice Scalia, I don't mean dead in the sense of "not living." Indeed, Justice Scalia has expressly rejected the phrase "dead Constitution" preferring — perhaps for public-relations reasons — the more felicitous phrase "enduring Constitution." But I prefer a dead Constitution. The largest political constituency with the smallest number of advocates are not the unborn, or blacks, or Indians, or the mentally handicapped. It is not Christian white men or lesbian brown women. It's not even the "future generations" who, we are constantly told, will have to pay for our deficits or for the retirement of the baby boomers. No, the group whose priorities are given the least attention are those of the dead. This isn't Swiftian sarcasm or winking irony. I'm quite serious about this. Chesterton's defense of the power of tradition is probably the most famous take on this idea (though, it should be noted, he's rewriting Burke's ideas). "Tradition means giving a vote to most obscure of all classes, our ancestors. It is the democracy of the dead." He continued, "Tradition refuses to submit to the small and arrogant oligarchy of those who merely happen to be walking about. All democrats object to men being disqualified by the accident of birth; tradition objects to their being disqualified by the accident of death. Democracy tells us not to neglect a good man's opinion, even if he is our groom; tradition asks us not to neglect a good man's opinion, even if he is our father."
This doesn't just extend to politics; theology gets the same treatment. We get in trouble when we try to get the Bible to say things that it didn't tell our ancestors. Both the Bible and the Constitution need to be read from the context of when they were written as well as what we want them to say today. In liberal theology, a desired application for today superceeds the Biblical text or what the writers were trying to say two millennia ago. Likewise, liberal constitutional law, especially as applied by O'Connor, starts from what the "right thing to do" is, ignoring whether the right thing is clearly allowed in the constitution. It's time for some good constitutional exegesis.

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