Response to News Clip by Mayor Pete Buttigieg Responding to the Opening Statement of Amy Coney Barrett, SCOTUS Nominee

For the video in question: https://twitter.com/petebuttigieg/status/1315707618980233217

Transcription: This is what nominees do, they write the most seemingly unobjectionable, dry stuff. But really what I see in there is a pathway to judicial activism cloaked in judicial humility. At the end of the day, rights in this country have been expanded because courts have understood what the true meaning of the letter of the law and the spirit of the Constitution is. And that is not about time-traveling yourself back to the 18th century and subjecting yourself to the same prejudices and limitations as the people who write these words. The Constitution is a living document because the English language is a living language, and you need to have some readiness to understand that. In order to serve on the Court in a way that's actually going to make life better. It was actually Thomas Jefferson who said that "We might as well require a man to wear still the coat which fitted him when a boy," as expect future generations to live under what he called "the regime of their barbarous ancestors." So even the Founders, that these kind of dead-hand Originalists claim fidelity to, understood better than their ideological descendents, today's judicial so-called conservatives. The importance of keeping with the times, and we deserve justices and judges that understand that.

My ABSTRACT
Mayor Pete is a radical with great rhetorical gifts. While well delivered, I find the content of his clip less inspired than cunning. He rightly denounces judicial activism, but he is selective in his applying the term. He praises the expansion of rights by the Courts, notwithstanding them being quintessential examples of modern judicial activism, since they identify constitutional rights never previous understood to be enumerated in it; but calls the prospect of a Court overturning an activist decision "judicial activism." I conclude therefore that Mayor Pete is not philosophically opposed to judicial activism, only when it does not play to his policy preferences. 

Mayor Pete omits certain key considerations.  

He does not mention instances when rights have been expanded via the amendment process, including guaranteeing the rights of former slaves as citizens and women's suffrage; and I believe he did because it flies in the face of his narrative that the Constitution is rigid, inflexible, and ill-equipped. 

Nor does he address instances when an activist decision has severely limited and restricted rights and liberty, such as Dred Scott v Sanford, Plessey v. Ferguson, and Korematsu v. United States. Judges are people, are not infallible, and get it wrong sometimes. For that reason, we should be cautious to call any Supreme Court decision "settled law."

Mayor Pete's quote was typical of Progressives. History is not a Progressive value. So when they appeal to it to make a point, they are usually bad at it. In this case, Mayor Pete uses Jefferson's quote that change in government is necessary as authoritative justification in favor of judicial activism. But Jefferson advocates no such method. On the contrary, consider this quote:

"Our peculiar security is the possession of a written Constitution. Let us not make it a blank paper by construction. [...] If it is, then we have no constitution. If it has bounds, they can be no others than the definitions of the powers which that instrument gives. It specifies & delineates the operations permitted to the federal government, and gives all the powers necessary to carry these into execution. Whatever of these enumerated objects is proper for a law, Congress may make the law. Whatever is proper to be executed by way of a treaty, the President & Senate may enter into the treaty; whatever is to be done by a judicial sentence, the judges may pass the sentence. Nothing is more likely than that their enumeration of powers is defective. This is the ordinary case of all human works. Let us go on then perfecting it, by adding by way of amendment to the Constitution, those powers which time & trial shew are still wanting." 

Thomas Jefferson, Letter to Wilson Cary Nicholas, September 7, 1803 (capitalization update) 

My FULL POST

I anticipate that the most productive way would be to talk about specific cases where you feel that Originalist judges did not step up. I'm happy to talk about it as it comes up. 
 
Mayor Pete's clip is a tremendous example of the power of rhetoric. Notwithstanding being a radical -- supports Medicare for All, has defended late-term abortion with the Bible, anti-Second Amendment, supports open borders, in favor of extending certain federal benefits to illegal immigrants, supports court packing, supports abolishing the Electoral College -- he is generally a very composed speaker with a temperate delivery of words, and has demonstrated a gift for explaining very radical ideas in seemingly more moderate terms. I nevertheless find his substance in the clip less insightful than cunning. 

The identification of a right not previously understood to be contained in the text of the Constitution (or any law) is one of modern times' quintessential examples of judicial activism. 

Now, Mayor Pete rightly denounces judicial activism in this clip. 

But notice that he does not label the past expansion of rights by the Courts to which he referred as judicial activism, when they absolutely were. (A certain knowledge of history of the Supreme Court informs us that those rights include the constitutional right of privacy, the constitutional right of abortion, the constitutional right to homosexual sodomy, the constitutional right of same-sex marriage, etc.) He praises those decisions as "[understanding] what the true meaning of the letter of the law and the spirit of the Constitution is." It is the prospect of the Court overturning an activist decision (one of the few ways to reverse an activist decision) because that decision had no basis in the Constitution which Mayor Pete calls "judicial activism cloaked in judicial humility." 

When they are outcomes he likes, they are enlightened; when they are ones he doesn't, they are judicial activism. If I may say so then, Mayor Pete (and I'll add the Democrat Party and Progressivism) do not actually philosophically object to judicial activism as long as it okays their policy preferences. And I think that Mayor Pete explains that articulately here. 

According to Mayor Pete, interpreting the Constitution (which always includes its amendments) in the way they were understood by the people who ratified it is not a basic expression of the rule of law, not a method of respecting and preserving our democratic republic through separation of powers, not a display of reverence for our neighbors and our ancestors, not our building on their legacy, keeping what is good and reforming out what's not per the process they left for us, thereby complying with the ongoing goal to "form a more perfect Union." Nope, according to Mayor Pete, such an approach is "time-traveling yourself back to the 18th century and subjecting yourself to the same prejudices and limitations as the people who write these words," it's you not getting with the times, not letting the Past die, the Constitution cannot keep up. One cannot just have the hearts of the children turn to the fathers like that, and expect "to serve on the Court in a way that's actually going to make life better." 
 

I noted that Mayor Pete did not mention the instances when rights have been expanded in this country via the amendment process, such as ending slavery and reinforcing the rights of former slaves as citizens as well as women's suffrage -- two of the most noteworthy social advances in the modern world. 

He also failed to mention the times when an activist decision severely limited and restricted liberty to large swaths of people, such as Dred Scott v Sanford, Plessey v. Ferguson, and Koremotsu v United States. (With these court cases in mind, it is important to dismiss the idea that any Supreme Court decision ought to be taken as "settled law," in the case it was a bad or wrong decision, either in principle or process. It's important to understand that judges are human too, and not infallible.) 

These to me seem quite the oversights. But I am also not surprised, because the idea and the history that the Constitution is capable of adapting, that the American people once believed in the amendment process, and tremendous change took place via its mechanism, runs directly counter to Pete's narrative and that of his party: that Originalism, and by extension the Constitution, is rigid and inflexible, that it prevents liberty instead of protects it, that it is not equipped to change with the times, that it's old-fashioned, outdated, past its expiration, a ball-and-chain instead of an anchor, and it would be a disservice to the country to confirm an Originalist to the court. Judicial restraint protects the democratic elements of our republic. 

 
As we discussed before, Progressivism and the Living Constitution theory does not believe in the notion of timelessness for anything, let alone the Constitution. For the Progressive, the governing principle is Change. It rejects permanence in any form. The notion of absolute truth, physical law, of moral law, of sense of duty or responsibility, of the homeland, of the sovereign state, of the home, the the nuclear family, of individual will, loyalty, gratitude, respect, is all too stable a thing to allow in their envisioned society of unfettered progress. Because the Past is fixed, therefore history, precedent, tradition all have no value in Progressive thought, and thereby can't be expected to influence the Present, unless it can be used to further their Cause. And boy does it show whenever Democrats attempt to invoke precedent, history, tradition, or even facts; because man, do they suck at it as a general rule. But they blunder with confidence, banking that you and I won't know any better to spot their errors. And Mayor Pete’s attempt to quote Thomas Jefferson is a prime example. 

The quote is taken Jefferson's letter to Samuel Kercheval (codename "Henry Tompkinson"), 12 July 1816. The State of Virginia was looking to update its own state constitution, and Mr. Kercheval had asked Jefferson for his opinions. Much of the letter describes Jefferson's opinion of the weaknesses of the then state constitution of Virginia. It is true that Jefferson is not careful to specify "state constitution" at every opportunity, but I gather that his observations are reserved to Virginia from the context, and he never mentions the federal government until one of his final suggestions, when he writes, "We should [in Virginia] thus marshal our government into 1. the General federal republic, for all concerns foreign & federal[.]" 

Mayor Pete's quote comes from the final paragraph. Jefferson opens: "Some men look at Constitutions with sanctimonious reverence, & deem them, like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well: I belonged to it, and labored with it. It deserved well of it’s country. It was very like the present, but without the experience of the present: and 40. years of experience in government is worth a century of book-reading: and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent & untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because when once known, we accomodate ourselves to them, and find practical means of correcting their ill effects. But I know also that laws and institutions must go hand in hand with the progress of the human mind. as that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilised society to remain ever under the regimen of their barbarous ancestors." 

(I’ll emphasize here Jefferson's acknowledgement that all of the Founding fathers shared his opinion that change was necessary in government, that the Constitution had to include a mechanism for change. Progressivism, the Democrat Party, and the Living Constitution theory do not hold the monopoly on thinking that change is necessary.) 

Mayor Pete offers this quote as a Founding-Father endorsement for judicial activism and condemnation for Originalism, saying that "[even] the Founders, that these kind of dead-hand Originalists claim fidelity to, understood better than their ideological descendents, today's judicial so-called conservatives." Jefferson said change is necessary, so, says Pete, activist judges are a legitimate method of change in our system. 

This is of course not true. Did Jefferson advocate for judicial activism to implement the change he saw fit? Had Mayor Pete read the letter from which he is quoting, he would have known that the answer is no, Jefferson did not. 

In fact, Jefferson explicitly advocated for regular constitutional conventions every 19-20 years, which is the interval at about which each generation becomes the new majority, to implement the changes; though he did not exactly know how to get enough people involved for the convention to be properly representative. (I'll also point out that it is not actually clear from the context of the letter whether Jefferson's opinions in this letter extend to the federal Constitution.) 

What did Jefferson think about judicial activism? I have not found the use of that term specifically, but may I offer this quotes for consideration: 

"Our peculiar security is the possession of a written Constitution. Let us not make it a blank paper by construction. [...] If it is, then we have no constitution. If it has bounds, they can be no others than the definitions of the powers which that instrument gives. It specifies & delineates the operations permitted to the federal government, and gives all the powers necessary to carry these into execution. Whatever of these enumerated objects is proper for a law, Congress may make the law. Whatever is proper to be executed by way of a treaty, the President & Senate may enter into the treaty; whatever is to be done by a judicial sentence, the judges may pass the sentence. Nothing is more likely than that their enumeration of powers is defective. This is the ordinary case of all human works. Let us go on then perfecting it, by adding by way of amendment to the Constitution, those powers which time & trial shew are still wanting." 

Thomas Jefferson, Letter to Wilson Cary Nicholas, September 7, 1803 (capitalization update)