The latest edition of Hillsdale College?s Imprimis features comments from Michigan state Supreme Court Justice Stephen Markman, a former Reagan administration assistant attorney general.
Markman discusses a half dozen problems associated with the notion of the ?living Constitution.? Among them is ?the prospect of transforming the Constitution from a guarantor of ?negative liberties? into a charter of ?affirmative government.??
As various advocates of a 21st century constitution have urged, a privilege or immunity might be interpreted to allow the invention of a host of new ?rights,? and thus be construed to guarantee social or economic equality. However pleasing this might sound to some people, there should be no mistake: adopting this interpretation will supplant representative decision-making with the decision-making of unelected, unaccountable, and life-tenured judges. Should the privileges or immunities clause be used in this way, as a charter of positive rights, ours will become an America in which citizens are constitutionally entitled to their neighbors? possessions; in which economic redistribution has become as ingrained a principle as federalism and the separation of powers; in which the great constitutional issues of the day will focus on whether porridge should be subsidized and housing allowances reimbursed at 89 or 94 percent of the last fiscal year level; and in which a succession of new ?rights? will be parceled out as people are deemed worthy of them by berobed lawyers in the judiciary.
For an alternative to the ?living Constitution,? you might appreciate U.S. Supreme Court Justice Antonin Scalia?s remarks from a 2007 speech in Cary on originalism.
