- The Washington Times - Monday, November 7, 2005

Judge Samuel A. Alito’s confirmation as an associate justice to replace Sandra Day O’Connor would mark a genuine turning point in U.S. Supreme Court decisions.

With Chief Justice John Roberts and Associate Justices Antonin Scalia and Clarence Thomas, Judge Alito would make the fourth of a band of philosophical brothers schooled to interpret the Constitution and statutes in accord with their original meaning, as the Founding Fathers intended. James Madison, Alexander Hamilton and other architects of the Constitution described the judiciary as the least dangerous branch, partly because the court’s interpretive power was meant to be circumscribed by the text and manifest purposes.

As Lord Acton might have predicted, the court’s absolute power to interpret corrupted its intended limits absolutely. In Dred Scott v. Sanford (1857), the court preposterously held that Congress lacked power to prohibit slavery in U.S. territories; and, that blacks, free or enslaved, held no rights white men were bound to respect. The dissenting opinion of Justice Benjamin Curtis thoroughly discredited the nonoriginalist conclusion of Chief Justice Roger B. Taney.

In Plessy v. Ferguson (1896), the court unconvincingly held that a statute mandating racial discrimination in railroad transportation was undisturbing to the Equal Protection Clause of the 14th Amendment. The odious “separate but equal” doctrine was given birth. But Justice John Marshall Harlan’s unanswerable dissent demonstrated the “colorblind” intent of the Constitution when civil rights are at stake. As early as 1873 in the Slaughterhouse Cases, the court had recognized: “In light of the history of these [post-Civil War] amendments, and the pervading purpose of them… it is not difficult to give meaning to [the Equal Protection] clause. The existence of laws in the states where the newly emancipated Negroes resided which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden.”

For more than three decades during the Lochner era (1905-1937), the court routinely flouted the intent of the 14th Amendment and echoed Social Darwinism to invalidate scores of economic regulatory statutes. Similarly, since Chief Justice Earl Warren’s stewardship more than 50 years ago, the court has chronically subordinated the “original meaning” standard of interpretation to personal views of a fairness, justice or enlightenment. In Griswold v. Connecticut (1965), for example, Justice William O. Douglas declared constitutional “penumbras” and “emanations” voided a statute prohibiting the provision of contraceptives to married couples. His opinion was a magnificent feat of imagination to defeat an ill-conceived statute, but it was no less constitutionally illegitimate.

The Griswold caper spawned Supreme Court decrees inventing an unlimited constitutional right to an abortion. The court made no attempt to demonstrate either the original meaning of the Constitution or its amendments justified its extravagant holdings, for instance, that fathers have no greater interests in abortion decisions than the government. Instead, Justices Anthony Kennedy, David Souter, and O’Connor took guidance in Planned Parenthood v. Casey (1992) from “mysteries of the universe” and “the meaning of human existence.”

Persuasive arguments can be marshaled to defend the wisdom of the Supreme Court’s abortion policies as a matter of legislation, or the idea that a right to an abortion is exceptionally important to a woman’s liberty. But neither claim equates with constitutionality.

The First Amendment celebrates fundamental liberties at least as compelling as abortion rights: freedom of speech, press, religion, and separation of church and state. Yet no serious student of constitutional law believes the court should have ordained the First Amendment through exotic interpretations if it had not been ratified by Congress and state legislatures.

Slavery was an abomination, but clearly sanctioned by the Constitution. Should the Supreme Court have ignored the law and eliminated slavery by decree without awaiting ratification of the 13th Amendment? If the Supreme Court becomes lawless, then who will obey the law?

In Lawrence v. Texas (2003), the court extrapolated from mysteries of the universe and the meaning of human existence a constitutional right to homosexual sodomy. Justice Kennedy, writing for the majority, was unable to distinguish a constitutional right to same-sex “marriage,” polygamy, or marijuana but for the different moral barometers of the individual Justices. In Grutter v. Bollinger (2003), Justice O’Connor sustained racial preferences in college admissions by suspending the colorblind standard of the Equal Protection Clause for 25 years. In United Steelworkers v. Weber (1979), the court substituted the “spirit” of the 1964 Civil Rights Act in lieu of its meaning to uphold racial discrimination in favor of minorities in private employment.

Judge Alito’s confirmation would end the court’s persistent interpretive nonsense, even if prudence dictates leaving intact the holding (but not the reasoning) of Roe v. Wade (1973). He represents a wave of originalist thinking that emerged with the election of Ronald Reagan and has yet to peak. That intellectual tide distinguishes the predicted turning points in constitutional law that did not turn with the appointments of Chief Justices Warren Burger in 1969 and William Rehnquist in 1986.

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

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