Abolish the Supreme Court
Or Living Constitutionalism. Democracy can’t have both.
Living Constitutionalism is the judicial philosophy that the Constitution should be interpreted with regard to the current culture, as understood through public opinion.
This stance argues that the Consitution was written in a different time and culture when people had different ideas about what laws were just and unjust. These ideas no longer fit with the current culture, which is seen to be more just, therefore the Constitution is deemed to be holding back the arc of the moral universe.
The easy solution to this problem is to interpret the Constitution, not how it was intended, but how it ought to have been written.
There are a number of problems with this philosophy, but I will only focus on one. A Supreme Court that looks to public opinion to make its decisions is nothing more than an undemocratic Congress.
Congress’s role is to make law based on public opinion, as understood through elections. A Living Constitutionalist Court makes law based on public opinion too, but as understood through its perceptions and opinions.
A Living Constitutionalist Court makes law because they are interpreting the Constitution by the process that makes law, but they remove a check on that process’s power by being unelected and unaccountable.
A Living Constitutionalist Court is unnecessary to the functioning of the government, as if it were working perfectly it would never disagree with Congress. That isn’t to say that Congress works perfectly, but at least there is a corrective process available.
If A Living Constitutionalist Court disagreed with Congress, by what legitimacy should their ruling be respected?
This is a problem for those who adhere to Living Constitutionalism and who want to pack the Supreme Court to save democracy. If they truly cared about democracy, they’d advocate for abolishing the Court, not expanding it.