Robert A. Levy, head of the Cato Institute, is of course a libertarian, and so committed to "a government of limited power and maximum freedom for the individual." He is also, however, a Constitutional originalist, which means that he accords all-but-divine authority on the Constitution's drafters. He believes that the intent of men dead for 200 years, filtered through the imaginations and propensities of living judges serenely confident in their ability to divine that intent, should determine the way we define our liberties today. We are free to do anything except define our own freedom.
That strangely authoritarian approach to freedom is in evidence in Levy's choice of words in a
letter published in today's Times, furiously countering "Geoffrey R. Stone's
panegyric to liberal Supreme Court justices." My emphasis below:
Thanks to so-called empathetic judges who have ignored the commandments of the Constitution, Congress can regulate anything and everything, redistribute money from anyone to anyone else, delegate its lawmaking authority to unaccountable and unelected bureaucrats, erase private contracts between consenting adults, extend less protection to political speech than to flag burning, seize private property for transfer to politically connected developers, punish blameless but disfavored racial majorities and impose anticompetitive restrictions on would-be entrepreneurs seeking only to earn an honest living.
Are the provisions of the Constitution
commandments? In a sense. The OED's first definition of commandment is "an authoritative order or injunction; a precept given by authority." That is true of the laws and founding documents of a representative democracy. But the term gives implicit short shrift to the converse; that the "authority" is "given" (or rather,
lent) by the people (presumably including living ones). The OED's second definition is "a divine command" -- specifically (2b), the Ten Commandments. Subdefinition (2d) adds, "also used allusively of other sets of rules, implying that they take the place of the Decalogue." That, I would argue, is the use at play here. (Though others might argue: is that Levy's "original intent?" And if that question
is argued, should Levy be the final arbiter of that question?)
Contrast the OED's definition of "constitution" in the political sense: "The system or body of fundamental principles according to which a nation, state or body politic is constituted and governed.." "Governed" by "principles" -- that seems more in keeping with American (and modern democratic) understanding of a polity's relationship to its constitution.
A written Constitution conceived as the sole guarantor of liberty becomes a fetish and therefore a fetter. The fetishization can be seen in Levy's simultaneous celebration and lament, in the introduction to his book
The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom (Cato, reprint 2010), over the extent to which the Constitution has governed/not governed American development: