Editor’s Note: Two weeks ago Sandy Levinson argued in a post entitled “A Jeffersonian Proposal for the Constitution” that we must revisit in a very Jeffersonian fashion of experiment and innovation the supposed failures of our Constitution and be willing to build anew where necessary. This post by Lino Graglia evaluates Levinson’s proposal.
Sandy Levinson could not be more mistaken in stating that “everyone will agree that the task at hand is to figure out how the existing Constitution should be interpreted.” As a hard-core realist, he is fully aware, and no doubt will readily admit, that the Constitution has almost nothing to do with constitutional law. Does anyone really think that there is a constitutional right to have an abortion because of how Justice Blackmun interpreted “due process”? Texas can’t prohibit sodomy and the states can’t have term limits on congressmen not because of the Constitution, but because Justice Kennedy, the American ayatollah, chose to vote with the liberals in those two cases. Congress can’t limit campaign contributions, Seattle can’t consider race in school assignments, and we have an individual right to own guns, because Kennedy chose to vote with the conservatives in those two cases. The justices split 4 to 4 so consistently, regardless of the issue, because of their conflicting ideologies, not different abilities to read the Constitution. The obvious truth is that no controversial ruling of unconstitutionality depends on constitutional interpretation. (Incidentally, Article One does not say “all powers,” it says “all legislative powers”)