The Kavanaugh Amendment - Granite Grok

The Kavanaugh Amendment

stooges-at-blackboard

If the answers to constitutional questions are in the Constitution, then it shouldn’t matter at all who sits on the Supreme Court.  We should be able to replace any subset of justices, and the same questions should get the same answers.  They’re all looking at the same document, right?

You might be feeling some hesitation about that — doesn’t the Constitution have to be ‘interpreted’?  But consider what would happen if it were announced that from now on, officials would be free to ‘interpret’ the NFL Rulebook in order to get any outcome they want, so that the result of any contest would depend entirely on who was doing the officiating.

There would be riots, wouldn’t there? 

But for some reason, we’re fine with that kind of thing when it comes to the Supreme Court.  Which is to say that:

  1. almost everyone has accepted that the answers to constitutional questions are not in the rulebook (the Constitution), but rather in the officials (the sitting justices of the Supreme Court); and
  2. we take our sports more seriously than we take our courts.

The practical effect of this is that, when a new justice takes a seat on the Court, the Constitution has been amended We just have to wait to find out how.

And this means that President Trump has already amended the Constitution once, by nominating Neil Gorsuch to replace Antonin Scalia.  Now he’s trying to amend it a second time, by nominating Brett Kavanaugh to replace Anthony Kennedy.

In the old days, amending the Constitution was a complicated, tiresome, uncertain process.  You had to get agreement in 2/3 of both houses of Congress and in the legislatures of 3/4 of the states.  It could take years.  (The 27th Amendment took nearly 203 years to be ratified.)  And it could all fall through at the last moment.  (The Equal Rights Amendment failed after collecting 35 of the 38 necessary ratifications, even after extending the deadline.)

The current process is so much more efficient — a nomination, a hearing, a Senate vote, and it’s done. Easy peasy!

But that efficiency comes at a catastrophic cost.  Chief Justice Charles Evans Hughes said: ‘We are under a Constitution, but the Constitution is what the judges say it is’.  You can’t say it more plainly than that, I think. The Court is the Constitution, and the Constitution is the Court.

And it’s because virtually no one disputes this view that — simply and literally — we do not have the rule of law.  We have the rule of men.  In particular, we have the rule of judges.

Now, maybe that’s what we really want.  Maybe the rule of a handful of really smart people — philosopher kings and queens, as it were — is preferable to the rule of law.  If so, let’s stop waxing eloquent about having one thing while actually having something that is nearly its opposite.

People often talk about ‘our living constitution’, but they say it as a metaphor.  The problem is, it’s not a metaphor at all.  Our Constitution not only lives, it breathes.  It eats and sleeps and poops and pees.  Sometimes it goes bird watching, or duck hunting, or salsa dancing, or driving around the country in a motor home. The Court is the Constitution, and the Constitution is the Court.

So when Justice Kennedy puts down his gavel for the last time, and Justice Kavanaugh picks it up, the answers to constitutional questions about guns, and abortions, and searches, and any number of other topics, will, at that moment, become different.  Laws that were unconstitutional may suddenly become constitutional, and vice versa.  Actions — and words, and maybe even thoughts — that were permissible may suddenly become punishable.  All in the time it takes to say ‘So help me God’.

And all this without a formal amendment being drafted, or voted on in Congress, or ratified by any state.  President Trump will have amended the Constitution for a second time, and almost no one will realize that it’s happened. Including both Trump and Kavanaugh.

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