Obama's Constitutional Trap for Conservatives
The president's attempt to intimidate the Supreme Court during his April 2 press conference had the distinct smell of desperation. And the excuse Obama gave -- that nine unelected judges striking down a law enacted by a popularly elected legislature would be judicial activism -- was not just constitutional illiteracy, but a red herring [i].
A glance at Roe v. Wade exposes the hypocrisy of Obama's posturing. However, caution is in order. The president set a trap by framing the ObamaCare argument in terms of judicial activism. If conservatives take the bait, they'll find themselves playing defense against an onslaught of hair-splitting over what's activism and what's not, when they should be playing offense against the unconstitutional power-grabs of a rogue administration.
To see what they could be in for, conservatives should read John Paul Stevens' opinion railing against Citizen's United. This was the 2010 decision that brought down Obama's wrath by restoring the right of independent campaign speech to corporations. Stevens' dissent reads like fodder for the Obama spin machine: accusations of judicial activism, calls for obsequious deference to Congress, cherry-picked precedents, and Chicken Little warnings against corporate and foreign money corrupting the electoral process. By conflating independent spending with donations, Stevens even handed Obama the lie about 100 years of precedent which Obama threw in the Court's face during his State of the Union speech:
Today's decision takes away a power that we have long permitted these branches to exercise. State legislatures have relied on their authority to regulate corporate electioneering, confirmed in Austin, for more than a century. [ii]
Stevens trotted out every excuse he could muster for not answering the constitutional question: is freedom of speech a First Amendment right, or a concession Congress grants Democrat constituencies to buy their votes and "electioneering"? Playing constitutional dodgeball to advance a partisan agenda is judicial activism. It is also an essential -- perhaps the essential -- progressive political strategy.
The right way for conservatives to fight back is to stay focused on the Constitution and traditional American values. When they do, as the Court did in Citizens United and the Tea Party did with ObamaCare, the odds are that they'll win. In his critique of Solicitor General Verrilli at Mother Jones, Adam Sawyer inadvertently put his finger on the downside of the claim that the Constitution means whatever five justices say it means when he voiced this ironic complaint at Mother Jones:
Where the lawyers challenging the mandate invoked the Federalist Papers and the framers of the Constitution, Verrilli offered jargon and political talking points.
Verrilli was asked point-blank to describe a limiting principle that could restrain the police power granted by the individual mandate. He had no answer because there is none. Verrilli was put on this spot because the administration and the legacy media could not believe that such a question would ever be asked. When it was, which Framer was Verrilli supposed to quote? After all, the last thing this administration can risk is convincing fence-sitters that the Constitution matters.
The newfound focus on constitutionality was too great an obstacle for Verrilli to overcome. It's one thing for progressive justices to mumble non- or even anti-constitutional nonsense in the privacy of opinions the public will never read. It's something else again for the solicitor general to mouth the same "jargon and talking points" with the media on red alert and millions tuning in.
The Tea Party turned on the spotlight, the Court fired the question, and Verrilli crashed and burned. A few days later, Obama's veiled threats and embarrassing walk-backs left the president looking like an obnoxious, vaguely dangerous jerk. Obama is on record dismissing the Constitution as a flawed document inadequate for spreading the wealth around. If he's relentlessly confronted with tough constitutional questions, like Verrilli, he'll have nowhere to hide.
Since the Supreme Court's the final arbiter, conservatives should start by reminding themselves what judicial activism is and how to fight it. That first part's easy enough, because forsaking the Constitution to advance a partisan agenda is hard to keep secret unless nobody's watching.
Here's former Justice Souter, in an instructive squabble with Scalia over original intent, explaining why precedent must be upheld even if it's based on revisionist history. The opinion is McCreary County v. American Civil Liberties Union of Kentucky, the 2005 decision that banned a display illustrating the Ten Commandments' influence on secular law from a courthouse hallway.
Historical evidence ... supports no solid argument for changing course (whatever force the argument might have when directed at the existing precedent), whereas public discourse at the present time certainly raises no doubt about the value of the interpretative approach invoked for 60 years now. We are centuries away from the St. Bartholomew's Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable. This is no time to deny the prudence of understanding the Establishment Clause to require the Government to stay neutral on religious belief, which is reserved for the conscience of the individual. [iii]
Fighting judicial activism is hard because the focus is on not the Constitution, but on what Earl Warren called "policy considerations" [iv]. Souter's "interpretative approach" is a classic example, combining the wall of separation with a perversion of Hugo Black's neutrality doctrine to banish religion from the public square [v]. Whether this reflects the framers' intent is irrelevant. What drives Souter's "reasoning" is "public discourse at the present time."
When he argued original intent, Scalia was wasting his breath. Souter simply invoked a tenet of progressive dogma that dictates what the Founding has to be: not the past itself, but a "sense of the past [that] points to governmental neutrality as an objective of the Establishment Clause, and a sensible standard for applying it"[vi]. Not history, but an undisprovable speculation embraced by the media and the political left.
Fighting judicial activism requires exposing lies that can be proven false. Here's just one of McCreary's. The stated purpose for the display was to demonstrate the impact of the Ten Commandments on secular law -- but according to McCreary, anyone looking for that influence would be "puzzled" because the display included the Declaration of Independence.
[An] observer would find that the [Ten] Commandments are sanctioned as divine imperatives, while the Declaration of Independence holds that the authority of government to enforce the law derives "from the consent of the governed." [vii]
Both parts of this statement are true; yet the conclusion Souter draws from them is demonstrably -- and maliciously -- false. McCreary smears the legislature and brands its purpose a sham by "proving" that in the Declaration, the source of government power is secular.
[The observer] would probably suspect that the Counties were simply reaching for any way to keep a religious document on the walls of courthouses constitutionally required to embody religious neutrality. [viii]
Since McCreary had already cited the Declaration's "endowed by their Creator" passage, Souter's sophistry is hardly an oversight [ix]. By contrast, here's an honest statement of the role of religion in the Founding:
The institutions of our society are founded on the belief that there is an authority higher than the authority of the State; that there is a moral law which the State is powerless to alter; that the individual possesses rights, conferred by the Creator, which government must respect. The Declaration of Independence stated the now familiar theme ... And the body of the Constitution as well as the Bill of Rights enshrined those principles. [x]
This isn't Scalia seething about McCreary; it's William Douglas, who paved the way to Roe v. Wade by inventing a constitutional right to privacy, lambasting McGowan v. Maryland because he thought that Sunday closing laws violate the free exercise rights of non-Christians.
There's no more compelling evidence of the corruption judicial activism has brought to the Court. The truth of the Founding was acknowledged freely by Douglas in 1961, but by 2005, five justices -- Souter, Breyer, Ginsburg, Stevens, and O'Connor -- were happy to embrace Souter's deception. Their dishonesty disgraced the Court.
Brace up, conservatives. It's time to fight.
[i] "I'd just remind conservative commentators that for years what we've heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident that this court will recognize that and not take that step." -Obama comment from his press conference Monday, April 2, 2012.
[ii] 558 U.S. _______ (2010), Stevens, J, dissenting, slip opinion at 20, emphasis added.
[iii] 545 U.S. 844, 881.
[iv] See, e.g., Flast v. Cohen, 392 U.S. 83 (1968), 94: "To the extent that Frothingham has been viewed as resting on policy considerations, it has been criticized as depending on assumptions not consistent with modern conditions."
[v] See Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947), 19: "Of course, cutting off church schools from these services, so separate so indisputably marked off from the religious function, would make it far more difficult for the schools to operate. But such is obviously not the purpose of the First Amendment. That Amendment requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions, than it is to favor them." By 1963, William Brennan was advocating a far harsher "neutrality." See School District of Abington Township v. Schempp, Brennan, J, concurring, 374 U.S. 203 (1963), 247: "Inevitably, insistence upon neutrality, vital as it surely is for untrammeled religious liberty, may appear to border upon religious hostility. But ... freedom of religion will be seriously jeopardized if we admit exceptions for no better reason than the difficulty of delineating hostility from neutrality in the closest cases."
[vi] 545 U.S. 844, 876.
[vii] Id., 872-873.
[viii] Id., 873.
[ix] Id., 854.
[x] McGowan v. Maryland, Douglas, J, dissenting, 366 U.S. 420 (1961), 562-563.