Posted on 11/10/2002 12:25:35 PM PST by fatguy
One of the most important consequences of Republicans’ winning the Senate is that President Bush now is likely to get his nominations to the appeals court through the previously recalcitrant Senate Judiciary Committee. Even more important, if there is a Supreme Court vacancy in the next two years, Bush will have a good chance to get his nominee approved. Why does this matter? Why were the Daschle Democrats and their liberal allies so determined to stop even the most well-qualified Bush nominees? The reason is that, unknown to most Americans, the two parties are engaged in a bitter dispute over how to read the Constitution and how to apply it to hot-button issues of today.
We have witnessed nothing less than a social revolution in America in the last half-century. This social revolution was not produced by the American people; it was imposed on them by the courts. “But we are not undermining the democratic process,” the liberal advocates of these changes say. “The judges are merely interpreting the Constitution.”
The Constitution is indeed our supreme law, and it is the function of the Supreme Court to interpret it. Liberal judges have gone beyond interpretation, however, to issue rulings that fundamentally revise the Constitution. The liberals have effectively rewritten the Constitution in a manner that those who wrote that document would not recognize. Moreover, liberal scholars such as Laurence Tribe and Bruce Ackerman have produced a theory of jurisprudence that says the Constitution is a living document that judges should feel free to adapt as they see fit to current circumstances.
Let’s begin by looking at what the courts have done. Without any constitutional authority, the Supreme court has invalidated numerous state laws on matters such a school prayer and the regulation of obscenity. But, the liberals will say, what about the specific constitutional provision of “separation of church and state”? What about the First amendment? Actually, there is no specific constitutional provision of separation of church and state. Moreover, the First Amendment clearly specifies, “Congress shall make no law . . .” It is a restriction on federal, not state, power.
Liberal judges such as Earl Warren, William Brennan and Thurgood Marshall devoted their careers to trying to take things that they don’t like out of the Constitution, such as gun rights and the death penalty, while putting in things that confirm to their liberal ideology, such constitutional protections for abortion, homosexual rights and obscenity. Today, this addition and subtraction process continues with judges such as Ruth Bader Ginsburg, Stephen Breyer and David Souter. In a sense, these people are policymakers masquerading as judges.
If that seems like an unduly harsh way of putting it, let me try to show why it is not. Consider the “right to privacy” that the Supreme court invoked in striking down all state laws that restricted abortion. Where is this right to be found in the Constitution? It contains speific privacy protections, such as the right against “unreasonable search and seizure.” But there is no general right to privacy. Examine the text, hold it up to the light – it just isn’t there. Roe vs. Wade, the 1973 decision declaring abortion a constitutional right and invalidating numerous state laws regulating abortion, represents a grotesque abuse of judicial authority, with immense social consequences. Yet even today the Supreme Court continues to uphold, and even expand, this “right.”
Let me be clear: I am not here debating the policy merits of the Supreme court’s decisions about school prayer, obscenity and abortion. Possibly the liberals are right that public prayer is dangerous, that there are great social merits to killing the unborn and to disseminating obscene materials. I would question such priorities, but here I am simply raising the question of whether these are policy issues that the Supreme Court should decide. Does the Constitution confer legitimate warrant for the court to settle such questions?
In a famous speech a few years ago, Brennan answered yes. “For the genius of the constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.” This initially sounds reasonable, but it should only take a moment’s reflection to see why it is utterly bogus.
Sure, the constitution needs to adapt and change, but the framers anticipated this. There is a procedure specified in the constitution – the amendment process – by which the document can be changed. And several times during the course of American history, the Constitution has been amended. But it takes an overwhelming majority in the Congress and in the state legislatures – a virtual consensus of the society – to do this. The framers wisely made it hard to change the Constitution so that it would remain an expression of the enduring will of the people and not become the property of any particular interest group.
By exploiting the discretion that is inherent in the process of interpretation, the liberals have succeeded in hijacking the Constitution for their own political ends. In essence, liberals frequently seek to use the courts to achieve political and social changes that they cannot achieve by amending the Constitution or through the democratic process. This process is going on now with the death penalty. The Constitution specifically provides for the death penalty. A sizeable majority of Americans support it. It is unlikely bordering on impossible for liberals to amend the Constitution to impose a comprehensive ban on the death penalty. But liberal judges seek to use the “equal protection” and “cruel and unusual punishment” clauses of the Constitution to strike down the death penalty.
Once again, I am not debating the merits of the death penalty. There is a legitimate argument over whether the death penalty effectively deters violent crime, although my personal observation is that not one of the criminals who has been executed over the years has ever killed again. The issue is whether judges should have the power to make a ruling that specifically contravenes the Constitution and also goes against the wishes of the American people. Here the liberals generally say yes, and the conservatives generally say no.
The issue is a fundamental one: It goes to the heart of what kind of society we are. In a democratic society, people make the laws. The judge’s job is to interpret the law, to apply it to specific cases. For judges to make laws that go beyond their contitutional authority is for them to usurp the prerogatives of the legislature and of the people. Do we want to be ruled by nine unelected individuals drawn from a relatively narrow segment of society, or do we want to be ruled by people that we elect in the manner that the constitution provides?
The role of judges is like that of an umpire in a baseball game. The umpire does not make the rules. The rules are given to him; his job is to apply them. The fairness of the game depends on the umpire performing this neutral function. Liberal Democrats, however, want their judges not to be umpires but to be players. They want activist judges who will issue rulings that are congruent with liberal ideology. At least for now, Americans have decided to keep these people away from the reins of power.
Only time I have ever been able to watch Donahue for more than 2 minutes.
Vote Gore in 2004!
I'd say welcome to FR, but you likely won't be around long enough, lol.
btw, quit posting such racist drivel and run along to DU, kid.
Some of the most interesting threads I've read are ones where a poster with the minority view takes on all comers.
Has Katrina yet learned who her congressman is? When asked by Chris Matthews recently, she seemed not to know. Strange, for someone ostensibly so "aware" of politics, and what's right for others and our country.
Of course, in her world (and that of most readers of The Nation) simply saying, "why, the party respresents me" is more the ideal.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.