Shall Not Be Questioned

From Randy Barnett:

UNLESS, Dorf really means that courts should avoid results that HE and those who agree with him believe are morally odiousness, though many Americans may disagree. In other words, judges should follow their own moral views (if they agree with Dorf’s) regardless of how widely accepted those views may be. But this methodology simply places the moral views of judges above whatever independent meaning the text of the Constitution may have. And you will remember from my last post that this is indeed Dorf’s position: “[C]ontrary to conventional wisdom,” he wrote, “constitutional doctrine typically trumps constitutional text – at least absent arguments of sufficient strength to overcome the principle of stare decisis.”

This is a prescription for what Larry Solum has called the “downward spiral” of judicial nominations. If the Constitution has no meaning independently of a judge’s own views of moral odiousness, then everything depends on getting judges who share your views of moral odiousness. But when there is substantial disagreement about what is or is not morally odious at any given time (as there always is about some matters but not others) then this becomes an ugly fight to the death where anything goes, which is exactly what has happened.

Read the whole thing.  There’s more posts on this topic here and here.  I would love to get the left on board with an originalist constitutional consensus, but I doubt they’ll ever be able to accept it.  And why should they?  Progressive thought has largely dominated for the last century, and I don’t see any signs that it’s going to be change anytime soon.  I think George W. Bush’s presidency might have been enough to get them to flirt with the idea, but they are seeing salvation in the possibility of Obama, and I think there’s a good chance they’ll get it.  Constitutionally limited government is a bummer when you’re in power.