Close Encounters with a ‘Living Constitution’

March 24, 2017

Dear Reader (Not including anyone who includes auto-play videos on your websites. You should have a small, hungry animal sewn into your abdomen),

I'm writing this — or at least this sentence — from the Red Flame Diner in New York City. They're going to have to work a little harder to get that Michelin star, but the Arizona Omelet (onions, cheese, jalapenos) wasn't half bad.

Now that's the kind of thrilling scene-setting you've come to expect from this "news"letter. You're welcome.

I'm tempted to just leave it there and call it a day given that my mood is not what you would call "good." (Hey, what's the emoji for metaphysical dyspepsia and spirit-grinding weltschmerz?)

But let's say, for the sake of argument, that after I ordered the Arizona Omelet, the waitress brought me a bowl of oatmeal.

I might say, "I didn't order this."

Waitress: "Yes you did. That's the Arizona Omelet."

"This is oatmeal," I'd say. "The menu says that the Arizona Omelet has cheese and onions and jalapenos in it. It also says it's an omelet."

Waitress: "Well, we here at the Red Flame believe that the menu is a living, breathing document that changes with the times. Oatmeal is healthier than an omelet, and we feel that people should eat more of it. So, we only serve oatmeal, but we call it by different names."

Now, I could have taken up a lot more of your time by making my point more gradually, describing round after round of just slightly wrong orders. That's more like how the doctrine of the "Living Constitution" works in real life. A judge makes a small leap of interpretation that seems reasonable — say, replacing onions with shallots, which after all, are a kind of onion. Then the next judge makes another incremental hop in interpretation. And then another. And another. Until eventually the waitress brings me the head of Alfredo Garcia (not the one from the movie but Alfredo "Freddie" Garcia, the short-order cook who before his untimely death worked at the Red Flame Diner) who was infamous for his onion breath.

But the point is the same. It's like a game of telephone.

There are some issues where I think liberals have a sincerely held, rational, and legitimate point of view that I simply disagree with. But the doctrine of the Living Constitution is not one of them. Oh, I am sure it is sometimes one or two of these things — sincere and rational or legitimate and sincere — but, ultimately, it's never all three.

Consider Dianne Feinstein's performance during the Gorsuch hearings in the Senate. "I firmly believe that our American Constitution is a living document, intended to evolve as our country evolves," Feinstein said. "So, I am concerned when I hear that Judge Gorsuch is an 'originalist' and 'strict constructionist.'"

Yeah, okay. But at the same time, Feinstein prattled on about how Roe v. Wade is a "super-precedent," which I assume is a version of what Senator Arlen Specter (D., R. & I., Republic of Jackassistan) called a "super-duper precedent" — which actually sounds more intelligent when sung by Young Frankenstein.

After noting a bunch of court cases that reaffirmed Roe, Feinstein went on to make an additional point: "Importantly, the dozens of cases affirming Roe are not only about precedent, they are also about a woman's fundamental and constitutional rights."

I'm a bit fuzzy about what she sees as the distinction between fundamental and constitutional rights, but that doesn't matter. Clearly her bedrock belief is that the process of constitutional evolution stopped with Roe v. Wade. One might say that instead of being a 1789 originalist, she's an originalist of 1973.

As Bill Clinton said to the intern after sitting on the couch and patting his lap, do you see what I'm getting at?

Tampering for Me, But Not for Thee

The doctrine of the Living Constitution is a perfect example of how behind every double standard is an unconfessed single standard.

One of my longest-running peeves is how so many public bathrooms require me to touch a door handle that non-handwashers have used. But that's not important right now. Another of my long-running gripes is how whenever Republicans propose amending the Constitution, Democrats suddenly freak out about how wrong it would be to "tamper" with the Constitution. It's a weird position to hold when you see nothing wrong with liberal judges reading new meaning into the Constitution.

Similarly, during the Bush years, when alleged NSA wiretapping of American citizens (not named Flynn) offended Democrats, they loved to declare themselves champions of the Constitution and the Founders, quoting at the drop of a tri-cornered hat Ben Franklin's line that "those who would sacrifice liberty for security deserve neither."

It apparently hadn't occurred to them that the doctrine of a Living Constitution can sanction things they don't like, too. This itself is ironic, given that the principle author of the Living Constitution idea — Woodrow Wilson — saw no problem in prosecuting thought-crimes, jailing political dissenters, and domestic spying.

But let's get back to Feinstein. She was also horrified that Gorsuch is a critic of the Chevron Doctrine (which gives the benefit of the doubt to bureaucrats to interpret the law as they see fit). She insisted that it must not be revisited or amended in any way. Gorsuch correctly believes that the Chevron decision gave too much power to bureaucrats to invent laws, treating legislation as living, breathing documents too.

Feinstein insisted that experts must have the power to do what they think is best, even if Congress did not grant them that power. But the question is not whether the bureaucrats are right in the opinions. The question, as Michael Gillette famously put it, is whether unelected bureaucratic agencies should be able "to define the limits of their own power." Historically, that is a job for the legislature and, when the law is vague, judges. But under Chevron, bureaucrats are given precisely the kind of arbitrary, prerogative power the Founders saw as inimical to liberty and the rule of law. As Charles Murray put it in his book By the People:

Chevron deference augments that characteristic of prerogative power by giving regulatory bureaucrats a pass available to no private citizen and to no other government officials — including the president and cabinet officers — who function outside the regulatory state. For everyone except officials of the regulatory state, judges do not defer to anything except the text of the law in question and the body of case law accompanying it.

The unifying theme here is what has been the central premise of progressivism for the last 100 years: It's about power (See: Progressives & Power). When the Living Constitution yields the desired ends of progressives, the Living Constitution is a vital means. When the Living Constitution is inconvenient to those ends, we must bow down to the immutable and unchanging authority of super, super-duper, and supercalifragilisticexpialidocious precedents.

You can be sure that if the mystagogues of the administrative state had a Pauline conversion to minarchist libertarianism and started interpreting statutes in the most minimalist way possible, Senator Feinstein would start pounding the table about lawless bureaucrats. If judges started invoking the Living Constitution — informed by, say, new scientific insights into fetal pain — how quickly would liberals decry the lawlessness of constitutional evolutionary theory?

Close Encounters with Crappy Fathers

Last night I took my daughter to go see Life. It doesn't exactly break new ground in the genre of sci-fi horror movies about first encounters with aliens. And it is no spoiler to say that the movie screams from the first frame "This won't end well." (There's a joke about the American Health Care Act in there somewhere).

But it sparked a fun conversation with my kid last night about alien movies. And since readers seemed to like it when I aired my grievances about King Kong (to paraphrase Clemenza, I can't stand the way the adventurers say, "Leave the dinosaurs, take the gorilla!"), I figured I would dilate on my problems with Close Encounters of the Third Kind.

In the movie, Richard Dreyfuss is a happily married man and father of several kids. He is also one of a few dozen people exposed to some kind of mind-ray invitation to an alien rave party at Devil's Tower. ("Come for the music and lightshow, stay for possibly decades of anal probing!") The invitation doesn't come via an annoying e-mail from PaperlessPost, but from a kind of mind control that turns humans into bipedal salmon, willing to risk death by anthrax just to get there. Why the aliens bothered with this when they were perfectly happy to abduct children and capture our servicemen and hold them against their will for 30 years is never explained.

Anyway, Dreyfuss leaves his family. Well, actually, his family leaves him first when they conclude that he would rather make sculptures out of mashed potatoes and garden dirt than be a productive member of society or a good father. But, even after he realizes that if he gets on the alien ship, he could be there for decades (just like the soldiers), leaving his kids to grow up fatherless, he still gets onboard the ship. Note, he did have a choice. The mother of the abducted child doesn't join him. But Dreyfuss is the quintessential middle-age-crisis male of the me-decade and he'd rather go on his adventure and leave Terri Garr to raise his kids without even a chance for alimony.

I think it's worth mentioning that Steven Spielberg made Close Encounters before he became a father, and that he told an interviewer in 2005 that he would not make the same movie today:

Q: Father figures are common things. . . . Mr. Spielberg, was [War of the Worlds, the subject of this interview] your idea of reversing what you did in Close Encounters with a guy who goes with the family rather than abandoning it.

Spielberg: Well, I was never really conscious of that. I know that Close Encounters certainly, because I wrote the script, was about a man whose insatiable curiosity. More than just curiosity, he developed an obsession and the kind of psychic implantation drew him away from his family and only looking back once, walked onto the mothership. Now, that was before I had kids. That was 1977. So, I wrote that blithely. Today, I would never have the guy leaving his family and go on the mothership. I would have the guy doing everything he could to protect his children, so in a sense, War of the Worlds does reflect my own maturity, you know, in my own life growing up and now having seven children.

Dreyfuss's actions in Close Encounters have always vaguely bothered me, but it took my daughter's outrage at his selfishness to fully appreciate it. I had to promise her at P.F. Chang's last night that if aliens invite me to visit them, I won't leave her.

Various & Sundry

Canine Update: I don't have much to report here. Because my mother-in-law's funeral blew up our Spring Break plans, I decided on the fly to take my daughter up to New York to visit her other grandma and have some fun with dad. (Gotta get in some quality time just in case the mind-control ray convinces me to go discover myself in outer space.) We saw School of Rock on Broadway and did other fun stuff. But between spending last week in Alaska and this week in NYC, the point is that I haven't spent a lot of time with the beasts.

My wife, the Fair Jessica, reports that the Dingo has been vigilant in her dingoness. And I have been posting a great number of dog pics on Twitter (not least because National Puppy Day was yesterday . . . ). Here's Pippa as a puppy (if you have diabetes, you might not want to expose yourself to such sweetness). Here's never before seen archival footage of Pippa as a puppy. Here's Zoë back before we learned she was so sick (a couple days later she was in the veterinary ICU). And here's Zoë on Monday helping me not get work done.

ICYMI . . .

My thoughts on The Walking Dead.

For Republicans, playing defense is hard.

The ritualistic symbolism of presidential budget proposals.

I was on Morning Edition this, uh, morning.

I will be on Greg Gutfeld's show this evening (which means you lazy bastards who just read this on Saturday mornings rather than subscribing to the "news"letter version will learn this too late).

And now, the weird stuff.

Debby's Friday links

What will happen when Betelgeuse explodes?

The graves of famous dogs

Dog, sled

How 1,600 people went missing from our public lands without a trace

College student gets bad grade, amends Constitution, gets grade changed

Snowpiercer

Don't get too close to a neutron star

Cocktails from The Simpsons

Australian teen fights croc to impress girl

Civil War veterans do the Rebel Yell