In national politics, the Supreme Court of the United States is now the football on the field. As the debate over Neil Gorsuch has shown, it will remain so for many more years to come.

You can thank the leftist idea of a “living Constitution” for this. For many on the left, the Constitution means whatever their favorite judges decide it means.

Conservatives Don’t Support a “Dead” Constitution

Does this mean that conservatives support a “dead” Constitution?

Certainly not.

We stand for a legitimate Constitution. We stand for a Constitution interpreted according to its text, history, and time-honored legal principles. One that lives by its own rules, and adapts, changes, and thereby “lives” by amendment (required by Article V). Not one that changes by the fiat of five Justices who cannot be held accountable to the people. A Constitution that means something, and is not a blank slate for judges to cover with their own meaning.

Conservatives don’t support a “dead” Constitution. We stand for a legitimate Constitution.

If justices had the authority to change the meaning of the Constitution, then the abolitionists and the suffragettes wasted a lot of time getting the 13th and 19th amendments ratified. Of course they didn’t waste their time, since they knew the truth that Justice Scalia warned we were losing. They knew that to leave such big issues to “a select, patrician, highly unrepresentative panel of nine” was tantamount to violating “a principle even more fundamental than no taxation without representation: no social transformation without representation.”[1]

The Importance of Article V 

Does that mean conservatives just want to return to the past, that we have made idols of the Founders? No. In fact, that would not be faithful to the Founders themselves. George Washington himself said, “I do not conceive that we are more inspired — have more wisdom — or possess more virtue than those who will come after us.” That’s why the Framers established Article V, which provides a way for the whole people to change the charter of their government.

It’s also why the American people have done so 27 times.

Washington warned that anything less was “usurpation … the customary weapon by which free governments are destroyed.” When judges rewrite the Constitution by fiat, they usurp the authority of the people.

Gorsuch: Faithful to Law, Not Opinions

Conservatives like Judge Gorsuch oppose that. In his acceptance speech in January, he observed:

In our legal order, it is for Congress and not the courts to write new laws. It is the role of judges to apply, not alter, the work of the people’s representatives. A judge who likes every outcome he reaches is very likely a bad judge, stretching for results he prefers rather than those the law demands.

Judge Gorsuch stands by the time-honored American tradition that judges are not appointed for their politics. They are, or should be, appointed for their faithfulness to the law. In applying this standard, “the intention of the parties to it [the Constitution] ought to be kept in view,” said Madison. “[A]s far as the language of the instrument will permit, this intention ought to be traced in the contemporaneous expositions.”[2] This is why the Democrats could not destroy Gorsuch. His answers squared with what American judges were meant to do. They are to apply the law, not their politics.

A Nation of Laws

The whole point of having a written Constitution is that it cannot mean just anything. If it could, there would be no need to have a text. While it can encompass a wide array of public policies (as the Framers intended), it can’t mean what it could not mean to those who wrote it.

The whole point of having a written Constitution is that it cannot mean just anything.

That is why James Madison attacked judges “who study, by arbitrary interpretations and insidious precedents, to pervert the limited government of the Union into a government of unlimited discretion, contrary to the will and subversive of the authority of the people.”[3] The point of the American Experiment was to bind not only citizens, but the state itself to a law that stands above it. This includes the Justices of the Supreme Court. If the Constitution means whatever the “panel of nine” says it means, it is no longer a Constitution. And we would thus become a nation of men, not laws.

Judge Gorsuch knows he is only a man. Thus, he intends to judge according to only the law.

Any other sort of Justice would contradict the American experiment.

The Senate is right to confirm him. Let’s hope it’s the start of a trend.

[1]Obergefell v. Hodges, 576 U.S. __ (2015).

[2]James Madison to Spencer Roane (May 6, 1821).

[3]James Madison, The Union: Who are Its Real Friends? (National Gazette; April 2, 1792).