In opposing Judge Gorsuch to the Supreme Court, Senator Dianne Feinstein pontificated: "I firmly believe the American Constitution is a living document intended to evolve as our nation evolves." Well, Senator Feinstein, conservatives agree with you.
We think the Constitution ought to be changed when circumstances create a compelling reason for that change. Conservatives, however, believe that the process for changing the Constitution is the process clearly described in Article V.
Slavery was ended by amendment, and blacks were granted equal protection of the law as well as the right to vote by the three Civil War amendments. Women were granted the right to vote by amendment. Prohibition and then the end of Prohibition were enacted by amendment.
Whether conservatives agreed with the particular amendments – and several were anathema to conservatives – there was no argument about the process being proper and the amendments changing the Constitution. Likewise, when amendments were proposed and then failed to obtain the requisite three quarters of the state legislatures, there was no doubt that the Constitution remained unchanged.
Why don't leftists use the process for evolving the Constitution that is universally accepted as the right process, and why does the left try to use, instead, the profoundly undemocratic and essentially unconstitutional process of having elitist cadres on the federal bench change the Constitution?
The left and its agenda are clearly unpopular with the American people and could never gain the supermajority needed to amend the Constitution. Indeed, the left never even tries anymore. Phyllis Schlafly almost single-handedly defeated so-called "Equal Rights Amendment" forty years ago – an amendment the Beltway insider assumed was so much a slam dunk that scarcely anyone in Washington spoke against it. After that, the left understood they could never amend the Constitution the way they wish.
Indeed, leftists routinely lose ballot initiatives even in states they consider reliably their territory. Sometimes, they take the unbelievable step of trying to get judges to prevent voters from even being able to vote on ballot initiatives.
Leftists insist that Federal Judges, especially the Supreme Court, can legally do exactly the same as Article V amendments if these judges can "read into" the Constitution things that simply are not there. The danger to the Constitution when conservative acquiesce in the propriety of this absurdity actually trumps Article V, because any amendment passed could simply be "interpreted" as meaning something completely contrary to the amendment.
How ought conservatives to respond to this threat? Well, sitting around waiting for a leftist justice to die is such a farcical process that it is odd that grownups could accept that – and yet that is precisely what has happened.
Look at the results: federal judges tie up endlessly President Trump's efforts to prevent terrorists from entering America. Federal judges insist, contrary to all historical evidence, that the First Amendment was intended to impose state atheism on all government actions. Wildly improper federal police bullying of citizens in a variety of ways goes unchecked by the courts.
Conservatives ought to completely change the dynamics of an "evolving Constitution," and there are several ways to do that.
Conservatives could pack the Supreme Court by adding enough seats to allow a clear conservative majority. A single statute could add six or eight or ten justices, and the nuclear option could get them on the Supreme Court in days. When leftists yelp, conservatives should simply note that they are following the advice of Senator Feinstein and "evolving" the Constitution in ways they think best.
Conservatives could also simply abolish lower federal courts like the Ninth Circuit and then reconstitute those bodies with a different name and composition one day later, with completely new judges and the old ones having no judicial office.
Conservatives could proclaim that all interpretations of the Constitution by the Supreme Court could be overruled by a single joint resolution of Congress. Indeed, that is what Thomas Jefferson believed. That might create a constitutional crisis, but surely that would be a good thing and not something conservatives ought to dread.
Conservatives ought, of course, to use the amendment process, including calling a constitutional convention. High on the list of amendments ought to be an express clipping of the powers of federal judges to "evolve" the Constitution and the creation of a better process when that document seems unclear.
Without absurdly powerful federal judges, the left can do nothing. Conservatives ought to make that a high priority.