Goldberg: a “Living Constitution” is all about Power

It apparently hadn’t occurred to them that the doctrine of a Living Constitution can sanction things they don’t like, too. This itself is ironic, given that the principle author of the Living Constitution idea — Woodrow Wilson — saw no problem in prosecuting thought-crimes, jailing political dissenters, and domestic spying.

.. But the question is not whether the bureaucrats are right in the opinions. The question, as Michael Gillette famously put it, is whether unelected bureaucratic agencies should be able “to define the limits of their own power.” Historically, that is a job for the legislature and, when the law is vague, judges. But under Chevron, bureaucrats are given precisely the kind of arbitrary, prerogative power the Founders saw as inimical to liberty and the rule of law.

.. The unifying theme here is what has been the central premise of progressivism for the last 100 years: It’s about power (See: Progressives & Power). When the Living Constitution yields the desired ends of progressives, the Living Constitution is a vital means. When the Living Constitution is inconvenient to those ends, we must bow down to the immutable and unchanging authority of super, super-duper, and supercalifragilisticexpialidocious precedents.

.. If judges started invoking the Living Constitution — informed by, say, new scientific insights into fetal pain — how quickly would liberals decry the lawlessness of constitutional evolutionary theory?