Judging judges: the Supreme Court tutorial
The long—awaited moment has come. After years of speculation about Supreme Court retirements, it was announced recently that Sandra Day O'Connor will be stepping down from the bench. Now the speculation has ended and the consternation begins: who will replace her?
Among partisans, hair is losing pigmentation on both sides. Liberals fear another Scalia—like appointee, and the savvy conservatives — more than once bitten and at least twice shy — nervously suspect that their increasingly pusillanimous politicians will again be led down the road to Stevensville, the land of wolves in constitutionalists' clothing.
For their part, the media portray this battle as typical partisan wrangling. Each side, we're told, is vying for ideological primacy, advocating for judges who embrace its platform and will rule accordingly. After all, isn't that the case with any appointment? When the President appoints members of his cabinet, doesn't he tend toward candidates whose ideology accords with his own? It sounds simple, doesn't it? There's no right or wrong, except insofar as the relative validity of each ideology goes. So the game is afoot; let's loose the dogs of political war.
Then again, not so fast. Esteemed jurist Robert Bork was interviewed by Tony Snow about a week ago. When commenting on the contentiousness and acrimony that attend these inside—the—beltway debates — the filibusters and bluster, the posturing and maneuvering — Bork made the point that this state of affairs only exists because we view judicial appointments as a political issue as opposed to a legal one. Of course, Bork should know, since so victimized was he by the politicized judicial confirmation process that his name has become an adjective and verb. But what exactly did Bork mean? What is the correct way in which to judge judges?
As some of you know, Bork was referring to the fact that a Justice's sworn duty is to rule on the constitutionality of law, and lower federal court judges do so, too. In other words, a judgee's job is to determine whether or not a given law is allowable under our Constitution and then strike it down or allow it to stand on that basis. In light of this, it follows that a judge's politics should matter not a whit, since, unlike politicians, the Constitution doesn't change its tune to suit its audience.
His politics shouldn't matter, I say. That is, unless his politics state that he doesn't have to be constrained by the Constitution. There's the rub.
Wait, hold the phone, now, how can a Supreme Court Justice, an individual who has sworn to uphold the Constitution, rule contrary to it? Well, to answer that question I offer you the Supreme Court Tutorial.
You see, quite a long time ago those on the left discovered that they had a problem: they wanted to institute left—wing reforms but realized that a pesky little document called the 'United States Constitution' stood in their way. They wanted centralized authority but the Constitution mandated states' rights. They wanted big government but the Constitution prescribed subsidiarity. They wanted a secular society but the Constitution allowed for the infusion of the public sphere with religious sentiments and symbols. They wanted a constitutional right to expression of every conceivable kind, including pornography and flag burning, but the Constitution was silent on those issues.
Now, they knew that this infernal screed could be altered legally through something called the 'Amendment Process.' But this required, mercy me, that the vast majority of the people — most of those affected by the Constitution — agree to effect the change. After all, this was no tidy communist dictatorship where governing contrary to the will of the great unwashed was just a stroke of a red pen away. Nor was it a pure democracy, where a transitory fit of collective emotionalism that garners your proposal 51 percent of a popular vote could carry the day. Holy hammer and sickle, Vladimir, what is an aspiring Master of the Universe to do?
What the left needed was wiggle room. So, never at a loss for a rationalization, the left latched on to a dandy. It had been understood widely that a Justice's role was to interpret the Constitution based on, well, what its authors actually intended for it to mean. But then the left told us, oh so authoritatively and superciliously:
Don't be so provincial. Why, don't you know that there are two types of judges in the world? We will educate you.
You see, some judges do still subscribe to that antiquated notion that a piece of paper cannot change its meaning over time of its own accord. Those Neolithic, inflexible, linear—thinking old souls are called 'constructionists.' But there's a new kid on the juridical block, and he and his friends know that our Constitution is a 'living document.'
Now, it requires great depth to wrap your mind around such a sublime concept, so assimilating it may be beyond your capabilities. Suffice it to say, though, their advanced evolution has obviated the practice of donning that straightjacket that some call adherence to commonly agreed upon rules. Why, haven't you heard? Rules are made to be broken.
Thus, according to their highly sophisticated judicial philosophy, the Constitution can be interpreted to suit the times. And eminently logical it is, for progress must march forward and we must be in the vanguard. Yes, pragmatic we are, and we will take you far.
As my richly sarcastic tone informs, the notion of a living Constitution does not find favor with me. However, it would be incorrect to simply state that it's a philosophy to which I don't subscribe. No, let me say, unabashedly and unyieldingly, that the idea that our Constitution is a living document is not a legitimate point of view. I shall repeat, despite its wide embrace among certain so—called experts and laymen alike, what I will call 'constitutional—relativity' is in no way, shape or form a philosophy that warrants anything but a dismissive laugh. It is nothing but a lie, a grand illusion, a judicial Trojan Horse that conceals tyranny and wears the guise of intellectualism.
To fully grasp the supreme betrayal that constitutional—relativity constitutes we first must understand the nature and value of our Constitution. Our Constitution is, in effect, the contract that the American people have with each other. It's much like the situation when a group of people pools its talents and resources to form a business: one of the first steps they will take is to draw up a contract. The purpose of doing so is to ensure that all parties will understand their rights and responsibilities, and to ensure that the business partners with greater clout won't be able to trample upon the rights of those with lesser.
What would happen, though, if the contract were rendered impotent, if respect for its dictates had diminished to a point where people thought nothing of violating them? Well, then no one's rights would be secure. Might would make right, and those who had the power to impose their will would hold sway, while those who lacked the power would become downtrodden.
Likewise, our national contract serves the same purpose, as it is our governmental firewall against tyranny. For instance, if the majority elects representatives who would vote to strip a minority of their freedom of speech or, God forbid, to exterminate them, our Constitution would prevent them from achieving their nefarious ends. That is, assuming that the contract has been held sacrosanct. Once rendered impotent, however, it lacks the weight to constrain even the most twisted manifestations of perverse popular will.
Ironically, while our Constitution was designed to protect minorities from the unjust whims of the majority, it is now being used to impose the unjust whims of minorities upon the majority. To illustrate this point I'll return to our hypothetical business partners.
If the partners find their contract to be lacking in some way, they can alter it as per the conditions of the contract. This usually requires that the partners get together and agree on what the change should be. Our national contract is just the same. It includes a provision that allows us to alter it through the aforementioned Amendment Process, the procedure that ensures that the vast majority of the people accept the change before it is instituted. It is the legal, democratic way to alter the Constitution.
But back to the business partners again. Let's say that only a minority of the partners want a certain change and, try as they might, they can't persuade a majority to assent to their wishes. These partners' forte, however, is sleight of hand. So great are their powers of deceit, in fact, that they are able to surreptitiously alter the contract, in contravention of the will of the majority and with such cunning that most are none the wiser.
Is it right? No, it is the circumvention of the agreed upon democratic contract alteration process. It is the imposition of the will of a powerful minority upon a less crafty majority. It is dishonorable, underhanded, and constitutes the robbing of the majority of what's due them under the contract. It is also exactly what living—document—judges do when refusing to abide by the original intent of the Constitution. They are, in the most dishonorable and perfidious fashion, undermining our republic by thwarting its democratic procedures, all for the purposes of imposing an agenda they hold dear. In a de facto sense they are altering our national contract without the consent of most of those affected by the contract. They are in violation of the supreme law of the land and, as such, are committing an illegal act.
So what is the role of judges? Well, it's time for another analogy, one involving a game that sometimes seems to have as many rules as a nation has laws: golf. In golf you have players, a ruling body, a rule—book and on—course officials. The players would be the people, the ruling body the legislature, the rule—book the constitution and the on—course officials the judges. Now, it's the role of the ruling body to institute rules and compile a rule—book so that everyone will know what is and is not allowable. The on—course officials, though, have no authority to make rules. Their only job is to determine whether or not an action or proposed action accords with the rules, and they have been enjoined to allow or disallow it on that basis.
Now imagine, though, that a certain official happens to dislike certain rules. Consequently, he is wont to say to himself, 'This may be allowable under the rules, but I don't like that rule so I'll disallow it' or 'The rules proscribe this, but I don't like that rule so I'm going to allow it.' Of course, this is unthinkable; such an official would be recognized to be shirking his responsibility and would rightly be removed from his position.
While this would be unthinkable and actionable if done to circumvent something as trivial as a sports rule—book, a transgression that can only compromise what is mere frivolity, it is standard procedure when done to circumvent our great national rule—book, a grand transgression that does violence to our very republic. With a wink and a nod living—document—judges overstep their bounds and usurp the role of the rule—makers with an impunity of which a rogue sports official could only dream.
Another one of the misconceptions that underpin constitutional—relativity is the notion that we can interpret the Constitution to suit the times. This sentiment was expressed by Justice William J. Brennan, Jr. in 1985 when he said, '. . . the ultimate question must be, what do the words of the text [the Constitution] mean in our time?'
What a question. Okay, I'll retort with a question of my own: whose conception of the times is being used as the yardstick? Moreover, is it a conception of the times that governs the interpretation, or, is it a projection of what will prevail in the times to come? After all, we find ourselves saddled with judges who divine the 'right' of homosexuals to 'marry' in state constitutions, despite the fact that the majority of Americans oppose this perversion of marriage. But if the majority doesn't determine what the 'times' are, who does? So, is this interpretation based on a minority view of what the times should be or will be? The answer is that it is none of the above. It is simply an interpretation based on the agenda of the interpreters. If it really is being interpreted to suit the times, it's only the New York Times.
I want to state in no uncertain terms that these rogues in black robes are doing nothing less than stealing our votes. For, we must remember that the American system is based on the eminently just principle that those who govern derive their power to do so from the people. Our legislators enact laws on our behalf, but we elect them to office and we have the power to oust them. And when drawing up legislation, they are limited in what they can do for us [or to us] by the constraints the Constitution places upon them, which is tantamount to saying that we are limited in what we can do through them by those same constraints.
But this is also the will of the people. This is because our Constitution could be called, to steal G.K. Chesterton's line about tradition, 'Democracy extended through time.' This is because our Constitution represents the will of not just the majority today, but of the majority of those who have lived in every age dating back to the very birth of our nation. It represents the collective will of those who crafted it at our country's inception, the collective will of those who altered it during her adolescence, and the collective will of those today and heretofore who have allowed it to stand.
It is for this reason that these judicial terrorists have transformed the principle of 'one man, one vote' into 'one judge, one—hundred million votes.' For, they steal not only the votes of we Americans today when they overturn constitutional laws created by our duly elected representatives, but in so doing and by ruling in favor of unconstitutional laws, they steal the votes of our forebears. They are the judges who would be kings.
If not kings, then at least oligarches. Our system of government is meant to include checks and balances that limit the power of the upper—echelon ruling class, just as citizens and officials of lesser authority are kept in check. For instance, the people are prevented from overstepping the bounds the law places on them by the police. The police, in turn, have superiors who can discipline them if they stray beyond their bounds. So it is all the way up the hierarchy of power, up to and including the three branches of the Federal Government.
The executive [the President] and legislative branches have great power, but this includes a degree of trump power over each other — they can police each other. Then, finally, there is the judiciary which has power over both. Should the President and the Houses of Congress conspire to violate our national contract with an unconstitutional law, the Supreme Court can intervene and right the wrong. But who, or what, checks the judiciary? Who or what polices the ultimate police? Only one entity can, and that is the Constitution. The constraints of its dictates serve as a check on the judiciary, but there's one small detail. It only works when the judges abide by it.
So, a living document? I really wish it were in the truest sense, because then it could speak up, assert itself and say exactly what it means. But it is not. Like all inanimate objects it is as dead as dead can be.
So, what do you say to people who believe that our Constitution is a living document? Well, ask them if they would like to play you in poker and have 'living' rules. Then you could draw two pairs when they had three of a kind and say, 'Oh, don't you know? Two pairs are now worth more than three of a kind.' It could be very convenient. After all, if you had the power to impose your version of living rules you could rob them blind.
It should be obvious by now how ridiculous the notion of constitutional—relativity is. Rules exist to ensure that things will be fair for all. Render them meaningless through manipulation and you can't have a fair game or, more ominously, a just society governed by the rule of law. So, rules are made to be broken? No, rules are made to be followed. The spirits of those who trample our Constitution are made to be broken.
Whether a living—document—judge parades under the banner of 'pragmatist,' 'activist' or some other fashionable designation, it is nothing but a euphemism for 'a judge who won't do his job.' Moreover, 'constructionist' is a fancy way of saying 'a judge who will do his job.' I reject all these terms because labeling judges in this manner is part of an effort to draw a moral and legal equivalency between them. Bestow upon each group a scholarly, innocuous sounding name, and you elevate the rogues and lower the virtuous. You then have succeeded in making members of both basic groups seem like occupants of different but equally valid legal categories.
Truth be known, there are only two types of judges in the world: good judges and bad judges. Good ones honor their office and show respect for the people by abiding by our great national contract. Bad ones abuse their office and show their contempt for the people by subordinating the contract to selfish personal agendas. Since a justice with lifetime tenure is a gift that keeps on giving, it behooves us to appoint only good ones. For we are quickly falling under a unique iron fist, a government of the judges, by the judges, and for the judges.
Selwyn Duke is a frequent contributor.