- The Washington Times - Monday, August 22, 2005

Through deafening silence, President George Bush is squandering an opportunity to influence the United States Supreme Court beyond the simple appointment of Judge John Roberts to fill the seat of Justice Sandra Day O’Connor.

The president should be employing the White House as a bully pulpit to persuade the public that the Supreme Court should interpret the Constitution according to its original meaning as mandated by the rule of law and separation of powers, not to achieve particular results. Otherwise, in the manner of Humpty Dumpty, the Justices can make the Constitution mean whatever they want it to mean. They can issue moral encyclicals cramming their conceptions of virtue down the throats of the American people. The president should be enthusiastically embracing the original meaning philosophy of Judge Roberts reflected in his voluminous writings in the executive branch and on the bench.

Judge Roberts’ replacement of Justice O’Connor will undoubtedly move the Court towards original meaning. The outgoing Justice endorsed such interpretive blather as “penumbras” and “emanations;” “evolving standards of decency that mark the progress of a maturing society;” “mysteries of the universe;” or “the meaning of existence.” Justice O’Connor concocted a test for determining whether a government practice promotes religion in violation of the establishment clause, pivoting on the psychological alienation that might demoralize a non-believer or dissident in viewing religious scripture, for example, the Ten Commandments. Judge Roberts will disavow Justice O’Connor’s lawlessness, but five votes in the Supreme Court are needed to win the war over constitutional interpretation. History teaches that public opinion will be more decisive than individual appointments on that score.

During the so-called Lochner era, the Court manufactured a right to “freedom of contract” to topple economic regulatory statutes like ten pins, for example, minimum wage or maximum hours laws. Devastating dissents by renowned Justices Oliver Wendell Holmes, Louis D. Brandeis and Harlan Fiske Stone were impotent against the majority, consisting of mediocrities who slavishly echoed public orthodoxies. And mediocrities will inescapably dominate any collective body. Only when President Franklin D. Roosevelt’s New Deal and Keynesian economics displaced Adam Smith and Herbert Spencer’s Social Statics as conventional wisdom did the Supreme Court repudiate Lochner.

A vacancy creates a rare advocacy occasion for the president because the public is then riveted on the Supreme Court for longer than a sound bite. If President Bush sincerely desires to entrench the Bork-Scalia-Roberts original meaning philosophy in the Supreme Court, he must bring the public along through statesmanlike explanations of what is at stake, i.e., the rule of law and process, not particular results. The history of liberty has largely been a history of holding each branch of government within constitutional bounds.



The advocacy task is difficult, nevertheless, because process commands no impassioned and well-funded supporters. In contrast, the opponents of process obsessed with results — whether liberals or conservatives — are organized and vocal. Thus, liberals would manipulate the Commerce Clause to enact federal laws banning guns in schools or transforming state crimes against women into federal cases. Conservatives are equally eager for Congress to brandish the Clause to prohibit partial birth abortions or to thwart Oregon’s Death With Dignity Act, or to act without a crumb of constitutional power to disturb a final Florida state court judgment concerning Terri Schiavo’s vegetative state. Whereas liberals rejoiced at the Supreme Court’s invocation of the “mysteries of the universe” and the “moral fact that one belongs to oneself and not to another or to society” to proclaim rights to an abortion and homosexual sodomy, conservatives similarly crave to wield corresponding fatuousness to promulgate an embryo’s constitutional right to birth and a constitutional prohibition against suicide or assisted suicide.

President Bush is ineligible for re-election in 2008. He has little to lose politically by repudiating the results-oriented constitutional demands of his right-wing base, the mirror image of his left-wing detractors. On the other hand, he has much to gain by speaking in statesmanlike defense of interpretive principles that honor the Constitution, not any party or political persuasion.

Sticking with the original meaning does not suggest that the Constitution is without shortcomings. In Article V, the Founding Fathers provided for amendments involving public debate and consensus. Visionary decrees by the Supreme Court were not contemplated as substitutes. Few would want to live in a land without the Bill of Rights or the post-Civil War Amendments. But that does not mean the Supreme Court should have short-circuited the requirements of congressional proposal and state ratification through lawless interpretations in the name of hastening public enlightenment.

The Constitution is too important to be subservient to results in lieu of principles intended by its architects. President Bush should be trumpeting that theme daily as the nation’s eyes are fixed on his signature Supreme Court nominee, John Roberts.

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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