July 8, 2005

Supreme consequences

“One single object…[will merit] the endless gratitude of the society: that of restraining the judges from usurping legislation.” –Thomas Jefferson

There is no greater threat to American liberty and the future of the Republic than a central government not bound by the limits and constraints placed upon it by our Constitution. Thus, it was providential that on the eve of Independence Day this past week, there were two significant Supreme Court assaults on liberty, capped by the retirement announcement of Justice Sandra Day O'Connor (with that of Chief Justice William Rehnquist likely to follow). It was providential because, as we contemplated the birth of American liberty and the sacrifice it has taken to sustain it, we were confronted with what has become the greatest threat to our liberty – judicial tyranny from within, or what Thomas Jefferson called the “despotic branch.”

Last week’s decisions pertaining to property rights and religious freedom make plain how critical it is that the Supreme Court be composed of jurists who are constitutional constructionists – those who, in the words of Ronald Reagan, are “bound by the Constitution to interpret laws, not make them.” This, as opposed to the now-countless judicial activists who populate the federal courts – those who, in the words of the venerable Senator Sam Ervin, “interpret the Constitution to mean what it would have said if [they], instead of the Founding Fathers, had written it.”

On the subject of property rights, Justice Joseph Story, appointed to the court by our Constitution’s author, James Madison, noted, “[P]ersonal security and private property rest entirely upon the wisdom, the stability, and the integrity of the courts of justice.” But in Kelo v. City of New London, the High Court permitted a Connecticut city to transfer private property forcibly from one party to another. (Here, one might reasonably wonder why all the consternation over Kelo’s property rights when Americans allow their property, in the form of taxes, to be seized for all manner of unconstitutional expense. But we digress…)

The Left argues that the Court’s decision was correct because the Fifth Amendment’s restriction on eminent domain restrains only the national government. However, it is the First Amendment, unique among the Bill of Rights, which makes a plain and explicit such restraint (“Congress shall make no law…”). No other Amendment in our Bill of Rights follows this formulation, meaning that the state governments are to be as limited in their powers as the national government is in regard to the individual citizens’ rights enumerated. Further, the Tenth Amendment outlining federalist principles provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

It is for this reason that the High Court’s decision in Kelo offended our Constitution: The Fifth Amendment’s restriction, “nor shall private property be taken for public use without just compensation” is applicable to all levels of government (as is, for example, the Second Amendment’s provision that “the right of the people to keep and bear Arms shall not be infringed”). Even Connecticut’s Constitution stipulates, “The property of no person shall be taken for public use, without just compensation….” That’s “public use.” Nowhere does it allow for the taking of property from one private party for the benefit of another.

(Of note, some property rights’ advocates argue the Fifth Amendment’s restriction on eminent domain is applicable to the states via the Fourteenth Amendment, but that line of interpretation is inherently flawed. Though the Fourteenth Amendment has become de facto law, it was never constitutionally ratified by ¾ of the states as stipulated by Article V – a subject for another essay.)

Alas, only a jurist who interprets the plain language of our Constitution, a constructionist as our Founders intended, would draw such conclusions and, accordingly, rule against such confiscation of property. At present, however, there are only three such jurists (four on a good day) on the High Court.

Likewise, the Court’s other decision, which approved displays of the Ten Commandments by state and local governments to honor legal rather than religious tradition, was wrong. Again, the First Amendment makes plain its unique restraint that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”), clearly implying that the states would not be so restricted. Thus, should a state’s constitution make reference to God (as they all do) or should a state supreme court or a county courthouse wish to display the Ten Commandments as an expression of the inseparable basis of Judeo-Christian tradition on American liberty, our Constitution reserves that right to the states, and to the people.

There simply is no “wall of separation” prescribed by our national Constitution, and for those who desire one, there is a prescription for amendment outlined by our Founders, rather than by judicial fiat. The errancy of these and other decisions by the Court serves only to erode further the integrity of our Constitution. If we are not a nation of laws, then we are only a nation of men – and that doesn’t bode well for the future of liberty.

The Federalist Papers, as the definitive explication of our Constitution’s original intent, clearly defines the Founders’ intent in regards to Constitutional interpretation. In Federalist No. 81 Alexander Hamilton writes, “[T]here is not a syllable in the [Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State.”

Concerned about the potential for judicial tyranny, Thomas Jefferson warned: “The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch. … The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”

Two hundred and eighteen years hence, Justice Antonin Scalia warns, “As long as judges tinker with the Constitution to ‘do what the people want,’ instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically.”

Thus, it is paramount that replacements for Justice O'Connor and Chief Justice Rehnquist be constitutional constructionists. However, moving nominations for constructionists like recent Circuit Court appointees Janice Rogers Brown or Priscilla Owen through the Senate will be a most acrimonious affair, as Senate Democrats will fight nominations for judges who do not do the political bidding of their constituents.

Texas Senator John Cornyn has outlined the constitutional limitations for the Senate’s consideration of President George Bush’s judicial nominees: “The Senate should focus its attention on judicial qualifications, not personal political beliefs; the Senate should engage in respectful and honest inquiry, not partisan personal attacks; and the Senate should apply the same fair process – confirmation or rejection by majority vote – that has existed for 214 years of our nation’s history.” Sen. Cornyn and his conservative colleagues hope to avert the “nuclear option” to end Demo filibusters instigated by Chuck Schumer, Ted Kennedy and Joe Biden.

Our Constitution prescribes that the President (not the Senate) is responsible for judicial nominations. Hamilton wrote in Federalist No. 66, “[I]t will be the office of the president to nominate, and with the advice and consent of the senate to appoint. There will of course be no exertion of choice on the part of the senate. They may defeat one choice of the executive…but they cannot themselves choose – they can only ratify or reject the choice, of the president.”

The notion that judicial nominees need pass a litmus test before a floor vote is anathema to our Constitution. Even Justice Ruth Bader Ginsburg, the most liberal of jurists, said of such tests, “In accord with a longstanding norm, every Member of this Court declined to furnish such information to the Senate. … When a [nominee] promises to rule a certain way on an issue that may later reach the courts, the potential for due process violations is grave and manifest.”

Presidential advisor Karl Rove said this week, “The President…worries about federal courts, federal and state courts, being activist and substituting their judgments for the judgments of elected state and federal assemblies” – as indeed he should.

National Center for Policy Analysis Senior Fellow Bruce Bartlett notes, “Tenure on the court has increased over time and turnover has fallen.” According to Northwestern University law professors Steven Calabresi and James Lindgren, since 1971 the average tenure in office for a justice has increased from 12.2 years (1941-1970) to 25.6 years. The average age of a justice upon leaving office has risen from 67.6 years to 78.8 years between the same periods. The average number of years between appointments to the court has almost doubled from one every 1.67 years to one every 3.27 years. The current makeup of the court is one of the longest in history, lasting more than ten years, since the appointment of Justice Stephen Breyer in 1994. “A mistake or error of judgment,” says Mr. Bartlett, “might still be with us 30 or 40 years from now.” (See Bush, 41; and Souter, David.)

Accordingly, filling vacancies on the High Court with constitutional constructionists should be President Bush’s highest domestic priority. For its part, the Republican-controlled Senate must ensure that each of the President’s nominees receives the constitutionally mandated full-floor vote.

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