E. J. Dionne Jr. has an article in the Washington Post about “conservative judicial activism,” Talking Sense On Court Choices. He speaks about lectures given by Justice Stephen Breyer which “offered a bold challenge.”
…the current trend among conservatives is to read the Constitution as sharply limiting the ability of Congress and the states to make laws protecting the environment, guaranteeing the rights of the disabled and regulating commerce in the public interest.
Both Breyer and Dionne seem to believe the Constitution is not what the Founders intended–a mandate for limiting the powers of the Federal Government. Breyer wants it to be more like a subsection of Federal Law.
Breyer’s master concept is “active liberty.” He argues that the point of our Constitution is democracy — to guarantee “the principle of participatory self-government” that gives the people “room to decide and leeway to make mistakes.”
That is exactly what the Constitution was written to prevent. The Constitution is quite clear in how participatory self-government can be used in the Federal system–by Amendment.
I doubt the man is stupid. But I think his mind has been clouded by all those years in court practicing law rather than studying the Constitution and the writings of its authors. He wants the Courts to decide constitutionality issues based on what the Justices believe the people want. The Constitution does nothing to limit, as he says, the ability of States to make the laws he describes. And the Constitution specifically mentions regulating commerce as a funtion of the Federal Government.
Will judges invoke their own narrow, ideological readings of the Constitution to void progressive legislation? Or will they join Breyer in viewing the Constitution as a framework that “foresees democratically determined solutions, protective of the individual’s basic liberties”? The fight over judges is not about politics, narrowly conceived. It is a struggle over what kind of democracy we will have. Breyer has helped us understand that.
I don’t think Breyer really understands. Or he chooses not to.
Exactly what the Founders feared and exactly why so many of us are outraged at all levels of government today.
Excellent post.
Comment by Marvin — November 23, 2004 @ 2:11 pm
This should be very frightening but I fear that we as a nation have gotten rather comfortable with the notion of letting well-meaning fatheads, and sometimes not-so-well-meaning, conduct our affairs for us.
Perhaps after the last election, we as conservatives can see our strength in numbers and see that good things happen to those who stand up to meet their obligations as citizens. That is the only way we can turn things around and see the Government adhere to the laws of the land.
The people are not above the law, and a government of, for and by the people can not be above the law either.
Comment by RedFalcon — November 23, 2004 @ 4:43 pm
Where were the Republicans in the Senate who approved the nomination of such a dangerous voice on the Supreme Court? Republicans just aren’t as good as the Democrats in fighting for — or against — federal judicial appointments.
Comment by John Adams at The Commons — November 23, 2004 @ 6:30 pm
Either we go back to the agrarian nation the founders knew, or we need to adapt the constitution to the times in which we live. The constitution as written needs clarification in order to apply to today. Like for instance this sentence fragment: “A well regulated militia being necessary to a free state”… that is either the law of the land or it needs to be rewritten to apply to today when we have a standing active duty military of two million or so. Take your pick.
Comment by Bubba Bo Bob Brain — November 23, 2004 @ 7:50 pm
Bubba, there is no need to try and decipher what the Founders intended when writing such sentences. They explained themselves quite clearly, in the simplest of terms for the day. Parsing their words has become something of a liberal hobby.
For those who haven’t read through enough to grasp their meanings, the Federalist Papers and Anti-Federalist Papers provide ample explanation from both sides arguing about ratification of the Constitution. Beyond that, Madison kept up quite extensive notes in the form of letters to all involved. Some, like those between him and Jefferson (not involved in the writing), explained things quite well, and identified reasons for not including some things, and detailing others.
This is precisely why we don’t need to try and interpret what the Constitution means. The explanations were adequately documented at the time of its writing and ratification. It is not law. It is the document which tells the Federal Government what it can and can’t do. The Bill of Rights were added in order to emphasize to the government that some things were absolutely, beyond a doubt, out of their hands, and don’t even think about changing them. Of course, those are the very things the courts want to interpret.
You want to adjust the Constitution? Fine. Get it amended. It’s a tough process–intentionally. It is supposed to be difficult to change so that it doesn’t get changed on a whim. It requires overwhelming support of legislators and voters. People like Breyer understand that, so work to make the changes they want without going through the process. That is judicial activism.
Comment by Bunker — November 24, 2004 @ 5:48 am