Another Perspective

No More Striking Down Constitutions

Why are even conservatives afraid to call things by their name?

By 11.7.05

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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.

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About the Author

John Haskins is associate director of the Parents' Rights Coalition.