The American Spectator

The post-Civil War amendments obviously expanded federal authority, but most obviously vis-a-vis the states, and for the purpose, most particularly, of ensuring that the newly freed slaves would be protected in the exercise of their traditional liberties. These amendments were not intended to provide the foundation for the 20th Century welfare/redistributionist/nanny state. Indeed, via the doctrine of “incorporation,” that is, the application of the Bill of Rights to the states, backed by contemporaneous evidence indicating that supporters of the provisions desired this result, the post-Civil War amendments applied the Constitution’s most explicit limitations on — authorizations of — federal power to states as well.

SO THE PROBLEM RECURS: How to create a liberal state via judicial interpretation when the nation’s basic document bars creation of much of that state? This conundrum helps explain why the left seems even more oriented than the right towards results-oriented jurisprudence. This dilemma also explains liberal angst over preserving “precedent.” Sen. Specter is upset about the abandonment of precedent not because he is concerned about stability in the law. All of the decisions which he seeks to preserve, most notably Roe v. Wade, upset prior decisions and settled law. Rather, he emphasizes precedent because he wants to preserve more recent court decisions ratifying the modern liberal state.

Even more so, leading Democrats fear that a more conservative court will dismantle the jury-rigged judicial justification for so many of today’s expansive state. They talk precedent because that is their best argument to use against conservatives. Should liberals install a firm left-wing majority on the Supreme Court, all talk about precedent would instantly vanish. The discussion would suddenly turn to the importance of judges vindicating the rights of those, namely liberals, who feel denied a fair opportunity to impose their agenda through the political process.

Should the Senate rigorously assess the qualifications of presidential nominees to the U.S. Supreme Court and the rest of the federal bench? Of course. Judges should have the temperament, integrity, and knowledge necessary to render impartial, well-reasoned, and fact-based decisions.

Moreover, their jurisprudence should base interpretation on fidelity to the meaning of the text when proposed, drafted, and enacted. The underlying political compromise will not always be obvious, and good people can differ in the application of even clear principles to complicated factual situations. Nevertheless, holding a result-based jurisprudence, whatever the particular end, should be grounds for rejection.

With the addition of Justices Alito and Roberts, the current Supreme Court has become more conservative. But left-wing activists have little credibility to complain, having thoroughly politicized the courts for decades. Today’s conservative jurists still get a lot wrong, but almost any conservative jurisprudential philosophy is better than the result-oriented theories advocated by leading Democratic lawmakers.