- The Washington Times - Monday, August 1, 2005

The United States Supreme Court regularly transforms its “judicial power” to interpret the Constitution into liberal politics by other means. As the Nestor-like Robert H. Bork trenchantly observes in a new publication, “A Country I Do Not Recognize,” the court chronically expounds sophomoric blather anchored in the signature 1962 “Port Huron Statement” of New Left nihilists: “The goal of man and society should be … finding a meaning in life that is personally authentic,” through a “politics of meaning.”

That judicial power has degenerated into liberal politics was substantiated last week when a formidable array of female Democratic senators at a press conference dispatched an ultimatum to nominee John G. Roberts, Jr.: Either pledge under oath to affirm the correctness of Roe v. Wade (1973) and sister “right to privacy” capers, or expect their opposition. The staged event was attended by Sens. Barbara Boxer of California, Hillary Rodham Clinton of New York, Barbara Mikulski of Maryland, Debbie Stabenow of Michigan and both Patty Murray and Maria Cantwell, both of Washington state.

Miss Cantwell elaborated Judge Roberts’ adherence to Roe would not be “good enough”; he must also salute an uncabined constitutional “right of privacy” to elicit her approval.

None of the Democratic six hinted they had read Roe and found its constitutional reasoning impeccable. Neither did they deny that Judge Roberts’ dazzling credentials made him decidedly superior in determining the correctness of Roe and its right to privacy offspring based on the meaning of the Constitution intended by the Founding Fathers.

The subtext of their political posturing, however, was valid. Since the Supreme Court’s yardstick for constitutionality has become liberal politics, they know better than any nominee what decisions honor a liberal political agenda. Consider the following larks of the Justices.

In Griswold v. Connecticut (1965), the court discovered a right of privacy protecting contraceptive use. Justice William O. Douglas amplified “that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” The Framers, however, intended the Bill of Rights to operate without astronomical embellishments readily manipulated to advance a political agenda. A Bill of Rights penumbra is in the eye of the beholder. It signifies whatever a justice wants it to signify.

Roe v. Wade is decisive proof. There Justice Harry Blackmun enlisted the Griswold precedent to create a constitutional right to an abortion as a penumbral privacy guarantee. Without embarrassment, he relied on the orthodoxies of the medical community with but a fleeting allusion to the Constitution in fashioning the Roe decree. When the case was decided in 1973, state legislatures were actively revising abortion prohibitions. Justice Blackmun mooted these exercises in self-government and carried out the abortion agenda of political liberals with the stroke of a self-created right-of-privacy pen.

The intellectual emptiness of the right was underscored in Bowers v. Hardwick (1986). In pleading for a constitutional right to engage in homosexual sodomy, Justice Blackmun quoted with approval from Justice John Paul Stevens: “[T]he concept of privacy embodies the ‘moral fact that a person belongs to himself and not to others nor to society as a whole.’ ” But to belong to oneself is neither moral nor immoral. It is simply an acknowledgement slavery ended with the Thirteenth Amendment. If the assertion means individuals are crowned with privacy rights to do anything that gratifies, then polygamy, same-sex “marriage,” access to child pornography, or using addictive drugs are constitutional rights.

The right of privacy acclaimed in Roe became even more divorced from the Constitution in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). A plurality opinion of Justices Anthony Kennedy, Sandra Day O’Connor and David Souter reaffirmed the core holding of Roe, but added a codicil devoid of meaning and smacking of sorcery: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under the compulsion of the state.” Only an impoverished imagination could fail to justify the most brutal antisocial homicidal act as vindicating one’s concept of the universe or life’s mysteries. The plurality thus could not have meant what they said. Their true meaning was that hocus pocus would be employed to enshrine liberal politics as constitutional rights.

In Lawrence v. Texas (2003), the court again highlighted the nonconstitutional moorings of the right of privacy. Justice Kennedy discerned a right to homosexual sodomy from the penumbras of the due process clause of the Fourteenth Amendment. Its Framers, the justice insisted, had been blind to the oppression his generation recognized in searching for greater freedom. In other words, if the true meaning of the Constitution does not ordain a liberal agenda, the justices should entertain a false meaning that does the trick.

Judge Roberts has awakened vocal opposition from the female Democratic six and their ideological allies because he disputes the view of the Griswold-Roe-Casey-Lawrence precedents that constitutional law is politics by other means. What liberals fear is an obligation to convince the American people as opposed to a handful of justices that their agenda should be law.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group. He has prepared an “Advice & Consent Handbook” on Supreme Court appointments and the judicial filibuster.

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