In an age when judges are habituated to invent rather than apply the law, a written Constitution is a thing of irony. We’ve become exactly what constitutions are designed to prevent: a nation not of laws but of men—er, sorry, of people. And not of just any people: We’ve become a nation of lawyers, a juristocracy in which courts first impose, say, gay marriage despite its total want of constitutional mooring, then re-impose it when 37 million Californians have the temerity to buck their robed betters in a referendum—with the law profs tut-tutting that such “fundamental” matters are beyond the competence of the rabble.

The living constitution is, in McDowell’s refutation, a Frankenstein monster created in the laboratories of Progressive-era law schools.

To show just how wayward the place we have landed, how removed from our trailblazing commitment to...


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