Thursday, June 24, 2004

Call Me a Constitutional Lawyer

If Professor Cass Sunstein is a good constitutional lawyer, I'm a flying wombat. In his latest extrusion at The Volokh Conspiracy, he talks about "constitutive commitments" -- better known as backdoor amendments to the Constitution. He opens with this:
It's standard to distinguish between constitutional requirements and mere policies. An appropriation for Head Start is a policy, which can be changed however Congress wishes; by contrast, the principle of free speech overrides whatever Congress seeks to do. But there's something important, rarely unnoticed, and in between -- much firmer than mere policies, but falling short of constitutional requirements. These are constitutive commitments.
It seems that the good professor hasn't heard that the U.S. Supreme Court upheld the provisions of the so-called Campaign Finance Reform Act which suppress free speech as blatantly as it can be suppressed. He nevertheless pushes on, in his ignorance, to tell us that
Constitutive commitments have a special place in the sense that they're widely accepted and can't be eliminated without a fundamental change in national understandings....Current examples include the right to some kind of social security program; the right not to be fired by a private employer because of your skin color or your sex; the right to protection through some kind of antitrust law.
That's what happens when the constitution is amended by judicial acquiescence in legislative malfeasance. The national program of social security is blatantly unconstitutional and a ripoff of the first order (see here and here). The "right" not to be fired because of skin color or gender amounts to the "right" to hold a job regardless of competence. The "right" to the "protection" of anti-trust laws (when all we need is enforcement of laws against fraud, deception, and theft) amounts to a license for government to undermine the dynamism of free markets.

Sunstein then reverts to his main theme, which is FDR's so-called Second Bill of Rights (see here and here):
[FDR] wasn't proposing a formal constitutional change; he didn't want to alter a word of the founding document. He was proposing to identify a set of constitutive commitments. One possible advantage of that strategy is that it avoids a role for federal judges; another possible advantage is that it allows a lot of democratic debate, over time, about what the constitutive commitments specifically entail.
In other words, FDR wanted to amend the constitution by extra-constitutional means. Instead of avoiding a role for federal judges, however, FDR (and his successors) got their way with the help of a cowed and hand-picked Supreme Court.

As for "democratic debate", we have judges to say what's debatable (that is, within the scope of the Constitution) and what's not debatable. When judges fail in their duty to the Constitution, as they often have in the last 70 years, demagogues (like FDR) take over. That's why people believe in "rights" that aren't rights: social security, affirmative action, nailing the "big guy" mainly because he's successful, and many others it pains me too much to mention.

Cass Sunstein is to the integrity of constitutional law as Pete Rose is to the integrity of baseball.