Conservatives contemplating George Bush’s judicial legacy — and
his bizarre vision of Harriet Miers among the nine highest
potentates in the democratic world — should expect no
counter-revolution. True, he promised constitutionalist judges. But
talking constitutionalism (like talking Christianity) is easy.
Our governing elite punishes unvarnished clarity about our
Constitution. Intellectual honesty, for lawyers, schoolteachers,
psychologists, professors and actors, is costly. Most lie low or
join the enforcers. Surely even Roberts, Scalia, and Alito see the
gap between them and the Founding Fathers, for whom precedent was
impotent against the Constitution.
Absurd though it is, only “constitutional” conservatives honor
precedent. The Liberal “mainstream” savors precedents they’ve shot
down — or will next chance. Their favorite rulings violate
centuries of precedent. But the obvious is hard to see, especially
as monumental, abstract questions are addressed in isolation from
thoughts of personal advancement. The realm of the mind and
methodology that do this are not the pragmatic part that wins court
cases, campaigns, and useful friendships. The former withers when
neglected for the latter. Even “all star” conservative
constitutionalists steer a careful course between the Constitution
and what the establishment will tolerate.
Righteous refinement obliges conservatives (holy and secular) to
treat these points as uncouth. They are not. They address why
Republicans are winning elections and “conservatives” are losing
the Culture War, waiting for strict constructionists to fix
everything. If we want to preserve for our children what was handed
to us we’ll need to stop describing things in grays that are
actually black and white.
Let’s drop the talking points about “conservative,”
“constructionist” and “originalist” nominees. Such language
obscures what’s going on. These nuances are a polite way of
pretending that the mainstream in law and government
interprets the Constitution differently than we do. No.
They are oblivious to the actual content of the Constitution, or
they are anti-constitutional. A polite term would be
“post-constitutional.”
If Ginsburg, Souter, and friends have a “theory” of
constitutional interpretation, they’re keeping it to themselves.
When they shake the foundations of the earth from their bench it is
neither theory, nor constitutional, nor interpretation. They are,
wrote Jonah Goldberg after one heinous ruling, “making it up as
they go along.”
We could also call this school of jurisprudence “striking down
the Constitution.” “Interpreting” is not “striking down.” Opposite
concepts. Conservatives desperately need to call things what they
are.
While we’re at it, Roe v. Wade is not “bad law” or
“settled law” or any other kind of law. It’s a court opinion on one
case. Calling it “law” is a way of reassuring Chuck Schumer that he
is a direct spiritual descendant of the Founding Fathers and
Justice Thomas is not.
Signers of the Declaration and the Constitution and justices
until FDR’s time would cringe to hear constitutionalists call
rulings “law” — binding though illegal. Citizens and
officials are to reject unconstitutional rulings. Jefferson,
Madison, and Lincoln did, citing their sworn oath. It is no
accident that judges have no army.
If constitutions count, homosexual marriage remains
illegal in Massachusetts. John Adams’s constitution says
explicitly the people are “not bound” by any law not ratified by
their Legislature. Four Boston judges struck down a constitution
that stood in their way — one they’ve sworn to uphold. The word
“treason” comes to mind — a strong word that Liberals would use
lustily if they could, but then the Left is all about winning and
conservatives are about slowing them down.
Has “conservative” governor Mitt Romney refused to enforce a
ruling dissenting justices and Harvard law professors say is bogus?
His oath compels him to refuse the court its pleasure. He pleads
impotence. Do constitutionalists demand that the outlaw justices
resign? Silence. Or Romney? No, they fancy him in the White House.
At what point will “constitutionalists” stop siding with the
establishment against the Constitution?
CONSERVATIVES JUST don’t get it. In a republic judges don’t get to
make laws and others are sworn to stop them when they try. Yet we
speak as if this is splitting hairs. Jefferson wrote that an
unconstitutional ruling is null and void. What part of
“void” can’t we understand? Why are “conservative” presidents,
governors, legislatures, mayors, sheriffs and school committees
siding with Laurence Tribe against Jefferson and Lincoln?
Law schools haven’t taught the Constitution for years. They
teach precedent. Conservatives dignify mockery of the
Constitution by pretending it’s a matter of dueling legal
theories. “We respectfully disagree with the court’s
interpretation…”
No. That ain’t interpretation. “Impeachable” is what it
is — prestigious degrees notwithstanding. Respect
swindlers in high places?
Subjecting Americans to foreign laws, as our Supremes have
proudly done, is an impeachable act. That needs no debate
and should have been unanimously stated by respectable
conservatives when the Supremes announced that we are under
nihilist European rulers whom we did not elect and cannot
impeach.
We need no nuanced legal taxonomy to tell the White House what
we expect in our judges. There’s an oath involved in the job.
“Support and defend” does not mean “subvert and pretend.” If that
excludes everyone in what liberals call the “mainstream,” fine. If
the mainstream is post-constitutional we’ll take someone
outside the mainstream.
Lifelong legal conformists need not apply. We want someone who
can read the instruction book and for whom a solemn oath does not
expire when their fanny hits the bench.
