Goodwin Liu is about to become the youngest member of
California's 9th Circuit Court of Appeals. That court is known to be
one of the most liberal in the country, and, based on my reading of Liu's book,
he'll fit right in.
Liu's book is a both a criticism of originalism--the largely
conservative idea that the Constitution's text should be strictly interpreted
using meanings that applied when it was originally signed--and an affirmation of
the "living, breathing document" approach that gives new meaning to it as the
years roll on.
Constitution endures because its meaning and application have been shaped by an
ongoing process of interpretation. That process includes both judicial
interpretation and transformations in constitutional understanding pressed by
political leaders and ordinary citizens throughout our
Considering that the Constitution is the foundation of our
government and the fountainhead from which all other laws spring, it's a little
unsettling that Liu thinks that it should shift drastically every decade or two,
based on whims from politicians. After all, that's what a foundation is--it's a
solid base to build on and its sole purpose is not to move. Isn't that how Liu
interprets that word?
Of course not. Liu and other loose constructionists are less
concerned with what a word means than with what they want to accomplish with it. You see, the Constitution was a flawed
document written by less evolved men over two hundred years ago. They made all
sorts of mistakes in this historical relic, and because it doesn't cover
Bluetooth and Internet pornography we can't really rely on it anymore. But we
can't SAY that...could you imagine what the peons would say? They didn't go to
Stanford and Yale, they wouldn't understand! So we come up with long, boring rulings
with exotic words such as "insofar" that basically say that we make things up
so we can clean up after the Founders.
of course, the express legalization of slavery could not be reconciled with the
ideal of a democratic nation dedicated to freedom and equality.
One of Liu's defenses of a loose interpretation of the
Constitution is that it's the pragmatic thing to do to keep it from being
irrelevant in a 21st Century society. Nevermind that it has a whole
Amendment process that could keep it updated, let's take his argument at face
value. The Founders also made a pragmatic decision to not ban slavery right at
the outset of the country. They had just
completed a war, and the country had strongly divided northern and southern
interests. For the sake of instituting the Constitution, perhaps the greatest
document ever written, they agreed not ban slavery for twenty years. They didn't
say that we should have slavery, as is often interpreted, they merely allowed it
to exist until 1808. Tensions were so high that in 80 years the country would
be in a civil war over the same issue--it simply wasn't feasible to ban it right
away. And yet that's always the argument that is trotted out to criticize it.
I find Liu's point that the Constitution is outdated puzzling in one other regard. Ultimately, it's a contract. Can contracts really go out of style? If I have a 30-year mortgage fixed at five percent, does Liu think the bank can reinterpret our contract 20 years from now and say, "well, the dollar isn't worth as much as it used to be, so we think you should pay 10 percent interest?"
I don't think he would go along with that. Neither should he go along with the idea of changing the terms of government that has served us well for so long.