Undead Constitutionalism

This was such a damn good piece from Adam Serwer last week that gets to the core of what is wrong with so much right-wing jurisprudence, “The Constitution Is Whatever the Right Wing Says It Is”

Setting aside the record of insincerity from Alito himself and the other conservative justices, the reason not to trust his disclaimer is that the Supreme Court has become an institution whose primary role is to force a right-wing vision of American society on the rest of the country. The conservative majority’s main vehicle for this imposition is a presentist historical analysis that takes whatever stances define right-wing cultural and political identity at a given moment and asserts them as essential aspects of American law since the Founding, and therefore obligatory. Conservatives have long attacked the left for supporting a “living constitutionalism,” which they say renders the law arbitrary and meaningless. But the current majority’s approach is itself a kind of undead constitutionalism—one in which the dictates of the Constitution retrospectively shift with whatever Fox News happens to be furious about. Legal outcomes preferred by today’s American right conveniently turn out to be what the Founding Fathers wanted all along…

The 6–3 majority has removed any appetite for caution or restraint, and the justices’ lifetime appointments mean they will never have to face an angry electorate that could deprive them of their power. It has also rendered their approach to the law lazy, clumsy, and malicious, and made the right-wing justices’ undead constitutionalism all the more apparent.

Many of the Court’s recent decisions, even before Dobbs, have demonstrated this…

Shortly after the Court’s decision in the gun-rights case, Neal Katyal, the former Obama-administration acting solicitor general, wrote, ”Gonna be very weird if Supreme Court ends a constitutional right to obtain an abortion next week, saying it should be left to the States to decide, right after it just imposed a constitutional right to concealed carry of firearms, saying it cannot be left to the States to decide.”

Well, no, that’s only weird if you assume that the right-wing majority’s intention is to consistently apply legal principles rather than to translate right-wing cultural identity into law. This is the purpose of the right-wing justices’ skewed historical analysis: to present discrepancies in which rights they uphold as inherent to the Constitution rather than as the product of their own undead constitutionalism…

I am not arguing that these positions are insincere. Rather, the purpose of this undead constitutionalism is to present contemporary right-wing positions on consequential matters as eternal and constant, and therefore the only legitimate interpretations, when they are entirely malleable and dependent on changes in conservative political identity. The majority’s supposed originalism is a means to affirm novel legal interpretations grounded in present-day right-wing grudges as what the Constitution demanded all along. Every time those grievances shift, the interpretations will shift with them, even as the justices scour history anew for confirmation of ideological conclusions they would never question even if they failed to find it. That is ultimately why no rights that Americans currently possess are safe from this Court. Decisions about which rights survive and which do not are highly dependent on what it means to be a conservative at that time. There will always be new right-wing grievances to ameliorate by judicial fiat, justified by new abuses of constitutional history.

So good.  And, of course, today’s decision dramatically undermining the separation of church and state fits right in with this.  Obviously, liberals are not perfect on this, either, but the degree to which Supreme Court opinions of the conservative majority now almost perfectly mirror whatever the majority of Republicans believe on any issue is, indeed, a serious problem for the legitimacy of the court, and, quite arguably, democratic governance.  The truth is, if you have decent Constitutional Law skills, you can craft a decent-enough sounding justification for any policy preference you have, regardless of fundamental principles of liberty and a reasonable Constitutional order.  And here we are.