But the “living constitution” is nothing more than imposing one’s ideological priors onto the document. I happen to think the crisis of a permanent bureaucracy that is ideologically divergent from the population is far more “dangerous” than anything else the country faces. If we are going to “pragmatically reinterpret” the constitution, that’s the challenge that such interpretation needs to meet.
> But the “living constitution” is nothing more than imposing one’s ideological priors onto the document.
That overlooks a key distinction: An "ideological prior" that's proved to be supported by real-world evidence (i.e., experience) is no longer an ideological prior.
Analogously: Special- and general relativity were just theories in 1905 and 1915 (their respective publication dates). Over decades, real-world evidence proved that they were, in the main, correct — but we still don't treat either as a sacred, immutable text.
The unitary-executive view is an untested theory, an ideological prior. In contrast, our existing administrative state is supported by close to a century of real-world experience.
That's not to say that modifications aren't needed in the modern state. We don't want to make a golden calf of the granular details of FDR's or the Warren Court's approaches, any more than we want to enshrine the unitary-executive model or the Alito-Thomas perspective.
But in a country with some 340 million people that's been the source of the reasonably-successful Pax Americana, it's incredibly risky to go unilaterally f*cking around — it's the equivalent of a teenaged driver insisting that he can refuel his car and change the oil while driving 75 mph on a crowded freeway.
The administrative system never worked. For much of the 20th century we had prosperity deriving from the post-WWII boon and the tatters of the Old Republic protecting private industry. But since 1980, we have had 12 presidential administrations. Of those, 9 won elections by expressly promising to cut government, several by promising to drown it in a bathtub. The only reason the system still exists is because American democracy is like those crosswalk buttons that aren’t actually hooked up to anything.
Regardless, we find ourselves in a new time. If the Old Republic could be overthrown by “emanations from penumbras” we can just as easily wave away the current imperial interregnum in which we find ourselves.
But the “living constitution” is nothing more than imposing one’s ideological priors onto the document. I happen to think the crisis of a permanent bureaucracy that is ideologically divergent from the population is far more “dangerous” than anything else the country faces. If we are going to “pragmatically reinterpret” the constitution, that’s the challenge that such interpretation needs to meet.