Dakota Beacon

Well, it’s back again.  The “living Constitution” is back on the front burner.  When will they stop this?  

The old argument from the left has been that the Constitutions must be a “living document”.  “Living” is such a positive term, after all.  But it means the death of constitutional law.

A “flexible”, “living” constitution means we basically make it up as we go along.  Someone decides that a law no longer applies - or doesn’t apply to him, at least.  Times change.  So we now have ordinances in places like San Francisco which have basically made shoplifting “legal”.  Some of us just don’t think that’s right - it does not provide equal protection, which is called for by our “dead” Constitution.  How old-fashioned of us.  TImes change.  We need to change with them, or so the left tells us.  It also means, though, that the law is then very “flexible” which by definition means the opposite of “equal protection”.  What is “legal” for one person in one place is not “legal” for another or one in a different place.  

We have seen the flexibility in our laws carried to extremes since the Covid abuses.  Governors have declared themselves dictators in their little realms, with life-and-death authority over which businesses survive and which do not, which proprietor will go to jail and which will not, who will pay crippling fines and who will not, who will be open for business, who will not, even who will live and who will not and what treatments will be permitted and which will not in order to save their lives.  Is this what the Founding Fathers had in mind?

Why write a law or an ordinance if we are going to be capricious in enforcing it?  If we allow our government to set a speed limit should this be enforced or not?  Should it be enforced selectively?  Should only white people or only women or only illegal aliens be allowed to drive over the limit?  Or just anyone?  Or should we say if you are in a hurry to catch a plane and are on the way to the airport it’s ok?  Or if the sun is shining it’s ok?  Or not?  If it is subjective to the person violating the speed limit or the situation at the time, shouldn’t we just stop making laws?  Just say there is no law?

We have basically said this about shoplifting and vandalism.  No one is enforcing any laws against that.  Are we the better for it?  Well, a lot of stores must go out of business, and precisely those which serve marginal neighborhoods.  But, hey, laws must be “living”, right?  It is out of step with our times to chase down shoplifters or even people who sexually abuse children now.  It’s the times we live in.  

Now we are witnessing the hearings for another Supreme Court nominee, Ketanji Brown-Jackson.  She will not even define the word “woman”.  Law is all about definitions and delineation.  We need to draw lines if we are to have any law at all.  We need precision.  In her exchange with Senator Ted Cruz, she was slip-sliding all over the place regarding the “1619 Project” and Critical Race Theory and her role on a federal sentencing board versus her role as a judge.  She is an activist.  Plain and simple.  

The hallmark of a good judge is objectivity.  When we turn our legal system over to subjective “feelings” we have the makings of chaos.  We are supposed to have a standard of weighing the facts of a case at law, looking objectively at how they interface with the letter of the law, looking to context to determine the meaning of the words in the law.  This is important.  It is a high function of discernment and intellect - it is not a time for drama, not the place for emotion.  The Supreme Court has been abused for decades as a way in which to effect law, rather than to interpret it.  It is the embodiment of contempt for our courts, our laws, our Constitution to so use the Supreme Court.  

What the movement toward a “living constitution” or “living laws” does is move us farther away from law itself and toward chaos.  It is a point on a continuum from orderly society governed by law equally applied (the ideal) toward the other end of the spectrum, where that free society is ready to embrace the harshest totalitarian dictatorship to restore some semblance of order.  This is the game plan of those behind this “living constitution” effort.  Those who simply like the term “living” and so support the idea are just dupes.  Right now we are leaving even-handed justice in the rear-view mirror as we contemplate the “living constitution” concept.  We are well on the way to grateful acceptance of an authoritarian dictatorship.  After all, we will need to restore order.  

Ketanji Brown-Jackson will likely be rail-roaded in.  It will be difficult for those who oppose her - they will be called “misogynists”, “racists”, “white supremacists”, even “Nazis”.  I hope that they will stand their ground regardless.  Brown-Jackson has made it amply clear that she is not interested in objectivity.  She favors critical race theory -  she believes in it. She sees no connection between her stand as a member of a federal sentencing commission and her position as a judge.  Why would she not apply the same principles to both?  

She favors critical race theory, she does not believe her job is to be objective, but rather an opportunity to be a powerful activist.  She dissembles and distorts to try to side-step these facts.  She openly supports Black Lives Matter, which was founded and is controlled (to the extent it can be controlled) by self-described communists.  

Her nomination came about as a symptom of the expected failure of the Democrats to secure another opportunity.  The hale and hearty Judge Breyer was surprised to wake up one morning to the news that he had decided to “retire” - just in time to shoe-horn in an extremist such as Brown-Jackson.  He must have feared something because he immediately acquiesced in the set-up.

Let us hope that there will be some effective leadership that will thwart the plan to put this woman on the bench.  She cannot be either honest or objective as a judge.  We must reject anyone as a judge at any level who believes that our laws and our Constitution should be “living” or “flexible”.  Or that the truths which inspired the Founding Fathers are obsolete.  On the other hand, Meghan Markle says she’s the right choice.  Maybe we should just leave it up to her.