Like most illiberal locusts of the left, Cass Susstein is a well-educated political hack that has very little common sense. The Constitution is a little over 4000 words. Even a dirt farmer from Kansas with an 8th grade education can understand most of it. And despite its flaws it has given our country rules for over two hundred years that have made us the freest and most prosperous country on the planet. For that reason, it is one of the greatest documents ever written. But it definitely has/had its flaws. Allowing slavery was one of them. It is actually quite readable but has been obfuscated by the legal profession and supreme courts have made some good calls and monumentally BAD calls. History, hindsight is actually the easiest way to judge “judges”. For example, now it is not difficult to determine that the 12 male judges who voted to uphold Dred Scot and slavery were twisting the Constitution in order to justify the inhumanity of slavery…and so we’ve had many rulings that relied on rationalizing bad decisions of the time and pretzel logic and thereby resulted in immoral results.
As far as this absurd argument about what is “originalist” – again – pretzel logic. For example, the 3/5ths clause was a compromise to get the southern states to ratify the Constitution who were dependent on slaves for their economy. Sadly, it is and was the fundamental moral wrong of the document and it took our bloodiest war and the 13th, 14th, and 15th amendments to rectify that great sin of slavery. Yet, even today, after the Civil Rights Act, and our 1st Black POTUS, the country still has one party that relies on race baiting to push their left leaning policies through fed, state and local jurisdictions. Sad, really.
So why I am not happy with the likes of Cass Susstein? Susstein, in a recent Bloomberg article, makes several arguments to minimize the notion of “originalism” in the Constitution. To me, the real issue is that Susstein and his fellow illiberal leftists do not see the Constitution as law, but rather, a document that must be interpreted by their standards of right and wrong and NOT necessarily followed. But we have Article V for that. It is called the amendment clause and the right to change the Constitution is clearly given to the Congress and States – NOT judges. Justices do not have the right to change the Constitution to the point that it is unrecognizable. It is not really complicated, but again, after 3 years of Haavad Law, nothing is simple – everything is uncertain. As I recall from my only law class – business law – the first thing the prof told us or should I say asked us – “Class, what is the only thing certain about the law?” – the brightest bulb in the class quickly answered correctly – “That it’s uncertain!” Bingo.
But the Constitution is actually pretty clear, even if the millions of words in cases and case law that have followed it are not. Susstein goes into the weeds quickly by giving us examples like “Racial segregation might be unconstitutional now even if those who ratified the equal protection clause had no problem with it”. To him, “the Constitution” does not mean the original one. Hmmm. So, which one does he mean? This is where he and his fellow lefties go off the rails. But I am confused by his assertion that those who fail to interpret their original intent are accused of being “criminal”. I suppose some extremists might go there. I simply find those who view the Constitution as “flexible” to interpretation as those who want the judiciary to have the power to make law as well as interpret it as wrong. Beat this issue into the ground. Justify the unjustifiable, but there is no interpretation of the Constitution other than the original one. It is simple really. They are impatient. They cannot wait for an amendment and the legislature and the states to do their job as spelled out in article V. These petty tyrants want the power to legislate as well as adjudicate. Is that criminal? If it is allowed to happen, then perhaps. He ignored that part of the argument, but that is what I would be concerned with about those judges who take it upon themselves to make law instead of interpret it. It really is that simple, but nothing is simple to these illiberal locusts of the left.