- The Washington Times - Friday, August 26, 2005

As the Roberts Supreme Court confirmation hearings approach, it occurs to me we need more than just a vetting of Judge Roberts’ judicial philosophy. We’re way overdue for a candid national debate, centered in the Senate, about the judiciary’s proper role in our constitutional framework.

Senators, in their advice-and-consent role, routinely put judicial nominees on the hot seat about their views on particular constitutional issues, but what about the views of the senators themselves? Who asks them what they think of the separation of powers or the doctrine of federalism?

I have this fantasy some enterprising conservative senator could use the Roberts hearings as an opportunity to initiate this important discussion. Then, instead of just viewing potential Supreme Court justices as policymaking agents to be supported or opposed based on their political views, we could delve into the more relevant issue of constitutional governance.

Perhaps a few days before Judge Roberts submits to his obligatory inquisition and show trial, someone like Sen. Orrin Hatch, Utah Republican, could call for a Senate discussion on judicial philosophy and the courts’ constitutional role. The public is entitled to know which senators foster judicial tyranny by insisting the courts be able to rewrite the Constitution.

Wouldn’t it be instructive, for example, to ask Sen. Barbara Boxer, California Democrat, to justify her requirement that Supreme Court nominees promise to preserve certain “fundamental rights”? Perhaps she could first explain what she means by “fundamental rights.” Are these rights so rooted in our national tradition there has always been a consensus about their existence and indispensability?

How about an unborn child’s right to life? Fundamental enough for you? Or, would Mrs. Boxer be speaking instead of a mother’s right to abort her child on demand?

If the right to an abortion were fundamental, wouldn’t there have been a consensus for it among the individual states long before Roe v. Wade in 1973? Justice Antonin Scalia, in his opinion in Planned Parenthood v. Casey, reminds us the opposite is true. Justice Scalia wrote: “The longstanding traditions of American society have permitted [abortion] to be legally proscribed.” As such, the right couldn’t possibly be considered fundamental in any real sense of the word.

What Mrs. Boxer and company really mean by “fundamental rights” is rights written into the Constitution by activist judges precisely because they weren’t fundamental enough to have been included in the original Constitution or its amendments or uniformly passed into law by federal or state legislative bodies. They mean rights whose continued existence depends upon Supreme Court justices affirming erroneous precedent established by their activist predecessors.

This is much more serious than it sounds. In demanding that would-be justices uphold precedent that has no grounding in the Constitution, Mrs. Boxer and her like-minded colleagues are trying to extract a commitment from them they will conspire to disenfranchise the people.

Though they always boast most Americans support abortion rights, these senators obviously don’t want to take the chance Roe will be reversed, because state legislatures may decide to outlaw or more strictly regulate abortion. Thus in the name of protecting “fundamental rights,” the will of the people and the integrity of the Constitution, they circumvent the will of the people and undermine the Constitution.

In a nutshell, that’s what’s so sinister and insidious about this “progressive” notion that the Constitution is an evolving document. When judges can make the Constitution say whatever they want regardless of the original understanding of those who signed and ratified it, the fixed basis upon which all our rights depend degenerates from concrete to sand. Our constitutional rights are no more secure than the whims of the unaccountable majority of the Supreme Court.

I just wish when one of these sanctimonious senators starts lecturing a nominee about a woman’s fundamental “right to choose,” someone would have the courage to throw back in his face the sanctity of the Constitution. I wish that one time a senator begins ranting about the potential loss of “fundamental rights” someone would note the extraconstitutional creation of mythical fundamental rights jeopardizes our entire constitutional scheme of rights and liberties.

Instead of, or at least preceding, the inevitable rash of pseudo-indignant sermons from Constitution-disrespecting senators about “fundamental rights,” we would be better served by a national dialogue on the fundamental importance of preserving the original understanding of the Constitution.

David Limbaugh is a nationally syndicated columnist.

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