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Loving Our Constitution

September 28, 2020 (1,000 words)

Legendary Supreme Court Justice Ruth Bader Ginsberg died on Friday, September 18, at the age of 87. On Saturday, September 26, President Trump announced his choice to fill the vacancy her passing leaves on the high court: Amy Coney-Barrett, age 48.

During an introductory news conference held in the White House Rose Garden, Ms. Barrett made a good first impression with a brief statement. What was most striking about that statement is how one could easily tell she composed these remarks herself, without the aid of a professional speech-writer to “sharpen the messaging.” She came across as articulate, sincere, and down-to-earth, someone we can all relate to and who is used to relating to us.

Hearing and watching her one couldn’t help but wonder how much better the country would be doing right now, if only our President were half as classy, composed, and coherent as this woman appears to be.

She began by declaring “I love our country, and I love our Constitution” – sentiments most everyone listening to her would enthusiastically agree with. But I’m wondering if there is such a thing as loving our Constitution too much. Is there such a thing as putting too much faith in it?

This question should not be mistaken as my taking sides in the long-running “original intent” versus “living document” debate. No, what I have in mind by posing this query will not be welcome news to partisans on either side of this steep ideological divide.

Ms. Barrett was a law professor at Notre Dame before being confirmed by the Senate as a judge for the U.S. Court of Appeals in October 2017. She is well-known as an “original intent” kind of person.

Barrett does not believe a judge should “create new law” by “legislating from the bench.” The job of a judge is to interpret the law as the people who wrote that law intended. It boils down to “the primacy of the text.” The Constitution means what it meant to those who ratified it.

Yes, that’s right, we’re talking about the late 18th Century understanding of the text. For the civil rights amendments that would be the post-Civil War Reconstruction understanding, etc. The rationale for this approach is nothing less than democracy itself: The enacted text went through the process of ratification to become a law in the first place. If we change that law now to comport with our current understanding, or with what we may want those laws to mean, then it ceases to have democratic legitimacy.

Stressing “original intent” in this way is not to claim the Constitution has all the answers or should call all the shots, but rather to see it as setting a reliable, unchanging baseline. This still leaves plenty of room for social change. However, any topic the Constitution does not specifically describe as off limits should be up to the public to make decisions about, not the courts.

Judiciously-speaking, then, Amy Coney-Barrett’s bottom line is this: Any social change should come only through the democratic process. If you want to alter the Constitution, do it through an amendment. If you want to change a statute, do it through the Congress or the State legislatures.

This leads me to the contentious issue of legalized abortion. In the wake of her recently announced nomination, Ms. Barrett is being hailed as a dream come true by the right, and condemned as a nightmare by the left. The latter group describes her as a “dangerous” conservative who will turn back the clock on women’s rights to the dark days of the 1950s, and return us to the era of back alley abortions. Without wanting to sound too glib, I guess you could say the former group is pretty much hoping for the same thing.

The pro-life crowd is positively giddy with anticipation at this latest turn of events. Someone who takes a liberal or activist approach to interpreting the Constitution (Ginsberg), is on the verge of being replaced by an individual (Barrett) who takes a conservative or “original intent” approach to that same document. But I’m afraid my pro-life friends are indulging some wishful thinking when considering the impact of this switch.

If I may insert some personal context here without being awkward, when the landmark Roe v. Wade decision was handed down on January 22, 1973, I wasn’t paying the least bit of attention. I was just a 19 year old know-it-all punk kid, abandoning the Catholic faith in favor of Buddhism, astrology, Abraham Maslow, and other assorted Maps of Consciousness. When I finally came to my senses twenty years later, all I heard about Roe v. Wade, over and over again, was how it represented “an exercise in raw judicial power.”

A majority of that Supreme Court found certain “penumbras” in the Constitution they claim protect a pregnant woman’s liberty to choose to have an abortion without excessive government restriction. With “liberty from government restriction” being the operative concept here.

The original intent gang may insist on social change through the democratic process, rather than allowing an activist judiciary to step in and hurry that process along. But there is no getting around the fact our Constitution is grounded in a strenuous belief in both “individual liberty” and protecting the citizenry from undue “government restriction.”

Pro-lifers may feel that legalized abortion takes these hallowed concepts a bit too far. But this is what we all signed up for when we signed on to a liberal democracy based on pluralism, when we put our faith in the democratic process to determine what laws would dictate our behavior.

Clinging to the hope that returning the Supreme Court to a majority of “original intent” Justices will somehow restore a Christian sense of moral order to our nation’s public proceedings, especially as those proceedings pertain to legalized abortion, is not the mark of someone who is cognizant of their surroundings, or who properly understands the philosophical framework of the country he or she is living in.

Robert J. Cavanaugh, Jr
September 28, 2020

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