Heh-heh: What if Supreme Court nominee Neil Gorsuch actually believed in that liberal legal concoction, the "living Constitution"?

You know, the idea that "[t]oo much has happened since 1789," to borrow a clause from retired University of Michigan law professor Richard Lempert in a Gorsuch-skeptical essay for the Brookings Institution. Like most liberals, Lempert believes that so much has happened since 1789 that Supreme Court justices are entitled to bring that tired old Constitution up to date in their rulings. They ought to be able to, say, get rid of the Second Amendment's right of individuals to bear arms–because who needs a "well-regulated Militia" nowadays anyway? The Brits are our friends these days, not our oppressors. Lempert called claims to "originalism"–the theory, espoused by the late Justice Antonin Scalia and Gorsuch, President Trump's nominee as Scalia's successor, that the Constitution should be interpreted according to its original public meaning, a "scam."

Liberal activists just love that "living constitution." The Equal Protection Clause may say that everyone of every race and gender is entitled to "equal protection of the laws," but since affirmative action–preferences for ethnic minorities and women–benefits some of the the groups that the Equal Protection Clause is supposed to benefit–unequal protection of the laws is actually OK, according to the liberal living-Constitutionalists.

But Gorsuch, appointed to the 10th U.S. Circuit Court of Appeals by GOP president George W. Bush, isn't a liberal. So University of Tennesee law professor Glenn Reynolds, another non-liberal, has some fun in a USA Today column hypothesizing about what could happen in the way of future Supreme Court rulings if Gorsuch happened to be, instead of an originalist, a conservative activist who took the idea of a living Constitution and ran with it. (Reynolds credits Georgetown University law prof Randy Barnett for this hypothesis.) Reynolds writes:

So what would a “living Constitution” approach from the right, based less on logic than experience, look like?…

During the New Deal era, the Supreme Court — after being threatened with “court packing” by FDR — endorsed a massive expansion of governmental power on the ground that it would lead to greater efficiency in the economy. Instead, we got a bloated bureaucracy with serious accountability problems, and a disastrous expansion in spending, regulation and federal debt. Based on this experience, I can imagine a conservative justice who sees the Constitution as a “living breathing organism” that must be kept in tune with the needs of the day deciding that the New Deal Court’s decisions were mistakes that violate the Constitution, and must now be rolled back.


And then there's this:

[W]hat about the Warren Court’s decisions on reproductive rights in Griswold v. Connecticut (striking down laws against birth control for married people), Eisenstadt v. Baird (doing the same for singles), and Roe v. Wade (finding a constitutional right to abortion)? These decisions were written against a background of hysteria about a "population explosion,” but now the United States — like many other countries — faces not a population explosion but a baby bust, with birth rates too low to sustain population, or to produce enough workers to fund retirement programs for the elderly. These decisions were also followed by a breakdown in family structures that continues to get worse. I can imagine a “living Constitution” conservative concluding that, whatever the logic of these decisions is, experience has shown them to be too flawed to survive.

Well, well!. As Reynolds concludes:

But my advice to those on the left attacking originalist approaches is this: Be careful what you ask for, because you won’t like it if you get it.

I think in that event, we'd suddenly find a lot of liberals thinking that maybe not so much has happened since 1789 after all.