Winning the battle, losing the war?

President Bush is winning the battle to put U.S. Appeals Court Judge Samuel A. Alito on the Supreme Court.

Judge Alito’s credentials are impeccable. Senate Democrats are shying from a filibuster. The 55-45 Republican majority is solid. And the alarmist “sky is falling” sound track of liberal extremist detractors rings hollow. They have sounded the same false alarm for every Republican Supreme Court nominee over the last 20 years.

But the president is losing the intellectual war over constitutional interpretation. This is enormously more important than having Judge Alito fill the vacancy created by the impending departure of Justice Sandra Day O’Connor.

The White House and the nominee refuse to denounce the homonymic school of interpretation regularly embraced by Justice O’Connor or to celebrate the original intent standard of Associate Justices Antonin Scalia and Clarence Thomas.

The homonymic school insists the Constitution sounds the same as the original document but means something different, i.e., whatever a majority of justices believe is socially or morally enlightened. The originalist school maintains the justices are confined to interpretations consistent with the intent and purposes of the Founding Fathers. Constitutional shortcomings or oversights are to be cured by amendments ratified by popular consensus, for example, the Bill of Rights, the Civil War Amendments, and the Women’s Suffrage Amendment.

Judge Alito authored a May 30, 1985, memorandum to the solicitor general during his service as assistant solicitor under President Ronald Reagan scorning Roe v. Wade (1973) and companion homonymic frolics. The memorandum deftly exposes abortion jurisprudence as thoroughly unconvincing. Yet both the nominee and President Bush treat the document like an orphan. They foolish concede that Roe and its homonymic posterity like Lawrence v. Texas (2003), which recognized a constitutional right to homosexual sodomy, were correct interpretations of the Constitution.

The war between originalist school and the homonymic school is paramount because the history of constitutional law is the history of intellectual orthodoxies. The brilliance of individual justices has repeatedly proven impotent against conventional wisdom no matter how preposterous.

Chief Justice John Marshall was helpless to prevent populist ideology and rising egalitarianism from eviscerating the constitutional protection of private contracts. Associate Justices Oliver Wendell Holmes, Louis Brandeis and Benjamin Cardozo were unable to sustain social welfare legislation against prevailing Social Darwinism and Herbert Spencer’s Social Statics during three decades of the so-called Lochner era. (It ultimately succumbed to the Great Depression and Keynesian economics). Associate Justice John Harlan’s constitutional rigor was no match for the Great Society utopianism that earmarked the Warren Court. Associate Justice Antonin Scalia has been powerless to protect core political speech from campaign finance dogmas. In sum, constitutional law belongs predominantly to whoever forges conventional thinking among opinion leaders.

The originalist-homonymic division is between champions of judicial legitimacy and crusaders for results, not between political liberals and conservatives. Both of the latter are preoccupied with results and are indifferent to legitimacy. Thus, liberals would warp the Commerce Clause to enable Congress to regulate guns in schools or violence against women. Conservatives would twist the Constitution to empower Congress to regulate partial-birth abortion or the fate of Terri Schiavo. Liberals acclaim Roe despite its ill-repute as intellectual blather. Conservatives would have the court similarly torture the Constitution to prohibit state pro-choice legislation.

The Alito Memorandum implicitly assails the homonymic school that gave birth to the constitutional right to an abortion. It specifically addressed the 3rd U.S. Circuit Court of Appeals’ decision in American College of Obstetricians and Gynecologists v. Thornburgh (1984) that invalidated a cluster of modest abortion regulations. The 3rd Circuit, for example, concluded the general constitutional right of privacy summoned into being by Roe prohibited Pennsylvania from requiring an abortion patient to receive factual information about the gestational age of the fetus, the availability of benefits to assist child-rearing, and the liability of the father for child support.

Judge Alito persuasively discredited that conclusion: “[The information] is relevant, accurate, factual, and noninflammatory. … No restriction is placed on physicians wishing to contradict or supplement it. If abortion is a woman’s choice, as the court has held, then surely the choice should be informed. It goes without saying that the woman is entitled to full information about what will be done to her and about the possible effects on her health. If only the woman is considered, abortion is like other surgery, and the states’ power to enact detailed informed consent legislation regarding general surgical procedures can hardly be questioned. … Roe took from state lawmakers the authority to make [the abortion] choice and gave it to the pregnant woman. Does it not follow that the woman contemplating abortion have at her disposal at least some of the same sort of information that we would want lawmakers to consider?”

As for Roe, the Memorandum maintained no more than a footnote was needed to demonstrate its monumental error.

As Senate confirmation hearings approach, the president and his nominee have disingenuously disowned the memorandum as a legally sound attack on the homonymic school and its outlandish applications. They are yielding the battle over constitutional interpretation to arch-liberal Democrats, and placing a cloud over confirmation by indulging in intellectual acrobatics. If there are better ways to squander the opportunity to alter constitutional law decisively with the O’Connor vacancy, they do not readily come to mind.

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