Stones Cry Out

Seth Lipsky reveals that this was the New York Times disapproving of a liberal judge, Louis Brandeis, for the Supreme Court in 1916. Indeed, when you consider the Constitution a malleable bit of clay to shape in the manner the current group of 9 justices please, you indeed strip it of its power to constrain the government. In addition, as we've seen lately, legislation from the bench becomes that much more likely.

But he was confirmed. At his retirement, Judge Brandeis looked back.

[The Times] quoted Brandeis as noting that the court “has often overruled its earlier decisions” because it “bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.” The newspaper which only a generation ago had insisted the Court, by its very nature, must be a conservative body, now praised Brandeis for being aware that the Court “is not an abstraction but a vital force which gives direction to the pace and range of economic forces.” At the heart of its editorial was this sentence: “The Constitution is a living law.”

I find this a contradiction. Judge Brandeis talks about bowing to the "lessons of experience", yet proud that had "overruled its earlier decisions". That's not learning from experience, that's "trial and error", which is not the way to run a country. George Washington said the same thing this way (emphasis mine):

Towards the preservation of your government, and the permanency of your present happy state, it is requisite, not only that you steadily discountenance irregular oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles, however specious the pretexts. One method of assault may be to effect, in the forms of the constitution, alterations, which will impair the energy of the system, and thus to undermine what cannot be directly overthrown. In all the changes to which you may be invited, remember that time and habit are at least as necessary to fix the true character of governments, as of other human institutions; that experience is the surest standard, by which to test the real tendency of the existing constitution of a country; that facility in changes, upon the credit of mere hypothesis and opinion, exposes to perpetual change, from the endless variety of hypothesis and opinion....

Washington was admonishing the new country to be extremely careful in experimenting in governing. This was not a blanket statement to never change anything, but to "resist with care" any assault on the main principles underlying it, of which the Constitution is the major part. These days, with the idea of a "living document" and consideration of foreign law in Supreme Court decisions, trial and error rather than experience have become the order of the day, subjecting us to "perpetual change". You don't change the law or the precedent to see what happens, you should be much more sure than that before using the American people as political and social lab rats.

That is why President Bush needs to nominate strict constitutionalists to the Supreme Court.