The American Civil Liberties Union’s recent statements on due-process should worry those liberals, conservatives, and libertarians concerned about due-process rights. It should also give pause to supporters of a so-called “Living Constitution” approach, which argues that the meaning of the Constitution can change to adapt to the times.
Recently, Secretary of Education Betsy DeVos and the Department of Education released new proposed rules on how colleges should handle sexual harassment and sexual assault claims, proposing a rollback of some Obama-era rules. In a series of tweets, the ACLU laid out its opposition to the proposed rules — shocking for an organization which claims to be devoted to due-process, as they actively oppose the effort to balance the proceedings to give better due-process protection to accused students.
The ACLU claims the new proposed rules “promote an unfair process, inappropriately favoring the accused.” You see, politically, it is a very bad time to do anything that looks like you support giving people accused of crimes the right to due-process, since the #MeToo movement has set up the false binary that you either condemn the accused or support rapists. Though oddly, a few weeks later, the ACLU attacked so-called victims’ rights legislation for undermining due-process rights for the accused.
Why is this worrisome? Because these same people want to have a Constitution that changes with the times, and their principal argument is that an originalist approach to the Constitution will impede rights. But the accused have rights, too. The whole purpose of due-process rights is to protect the accused from imprisonment by a corrupt government, by mandating certain protections so there is not a sentence-first-verdict-afterward approach to the law.
While the Left says that a Living Constitution approach will protect rights, they only believe that when it doesn’t interfere with their other political goals. For example, Sen. Dianne Feinstein, D-Calif., who fashions herself as a defender of the little guy against corporate interests and Republicans, etc. actually attacked Supreme Court Justice Neil Gorsuch during his confirmation hearing for defending the rights of a felon. You see, Gorsuch used a textualist approach in U.S. v. Games-Perez, defending the due-process rights of a felon, who was not knowingly a felon, who possessed a gun. The law clearly said that it is a felony for someone who is knowingly a felon to possess a gun. Games-Perez, according to the exchange with the presiding judge, was told he was not a felon.
So, if a law that says someone has to knowingly be a felon to be convicted of a certain crime, it’s pretty clear what the government has to prove. In the same way, if the Bill of Rights prescribes the right to face an accuser and cross-examine a witness, that’s what the Bill of Rights says. This is regardless of how the ACLU feels or regardless of current culture or political movements or increased awareness of sexual assault.
The strength of originalism is that it does not change with the times. The right to face your accuser, own a firearm, or practice your religion is a right until the Constitution is amended. The Living Constitution, however, is a judicial philosophy that inherently changes with the times; sometimes for better, but more often for worse. It is not guaranteed it will increase the protection of rights.
Matt Lamb is Director of Communications with Students for Life of America, which has more than 1,220 groups on college, university, and high school campuses in all 50 states.
