- The Washington Times - Thursday, September 1, 2005

There is (with due apologies to Marx and Engels) a Specter haunting Washington — it is the Specter of institutional arrogance and constitutional ignorance. Unfortunately, this Specter is also the chairman of the Senate Judiciary Committee which is about to sit in judgment of Judge John Roberts for the Supreme Court.

When President Bush announced his nomination of Judge Roberts for the highest court, Sen. Arlen Specter immediately threw down a warning that the young judge had better not be one of those suspect “originalists” like Robert H. Bork, whose nomination Mr. Specter helped defeat nearly two decades ago. It was, Mr. Specter repeatedly insisted, Mr. Bork’s originalism — the belief that a judge must be guided by the intention of the lawmaker — that doomed his nomination. By Mr. Specter’s odd reckoning such an approach to constitutional interpretation would somehow roll back the clock and once again allow the Senate to segregate its own public galleries.

Not only is it clear that the senator does not understand Mr. Bork’s jurisprudential approach any better now than he did 18 years ago, but it is also obvious that he is utterly ignorant of the essence of what originalism is all about. After all, it was the notion that a judge is obligated to discern the original intention that Chief Justice John Marshall once called “the most sacred rule of interpretation.” This is hardly the radical stuff Mr. Specter seems to think it is.

But even more distressing than the senator’s misunderstanding about the nature of constitutional interpretation is his more recent institutional bullying of Judge Roberts. In two released letters that have been sent to the nominee, Mr. Specter has warned him that he can expect some tough grilling on where he stands on the question of separated powers.

In short, the chairman of the Judiciary Committee hopes to extort a commitment from Mr. Roberts that as a justice he would not dare exercise the power of judicial review to invalidate any of the legislative handiwork that might come from Congress. This, of course, strikes at the very heart of why the founders thought an independent judiciary was absolutely essential. Congress was never intended to have an absolute and arbitrary power to do whatever it might wish to do.

It is worth remembering that for the founders the greatest problem with popular government was the legislative power. In their view, as James Madison bluntly put it in “The Federalist,” the legislative power was “everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” It was precisely to curb such legislative impetuosity that the founders separated the three great powers of government, creating an independent judiciary on the one side of the legislature, and an energetic executive with a veto power on the other.

The courts in particular were seen as essential to keeping the founders’ limited constitutional government truly limited in practice. As Alexander Hamilton put it in defending the judicial power in “The Federalist,” “the courts were designed as an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” Without this power “to declare all acts contrary to the manifest tenor of the Constitution void,” there would be no limits on an overreaching legislature.

The proper role of a federal judge, not least a justice of the Supreme Court, is to be guided by the Constitution and to stand firm against a Congress naturally inclined to finesse the expansion of its own powers.

Indeed, the very idea of a limited constitution by definition is one that contains “exceptions to the legislative authority.” And, in Hamilton’s words, “where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former.” Mr. Specter’s threat to Judge Roberts is thus a threat not only to judicial independence but to the very idea of limited government.

Were the nominee to accede to the senator’s demand the Supreme Court would be moved considerably along on the downward path to becoming little more than the handmaiden of Congress. That certainly was not what the founders intended, as anyone who knows anything about their original intention will understand.

Gary L. McDowell is Tyler Haynes Professor of Leadership Studies and Political Science at the University of Richmond and a member of the board of the Landmark Legal Foundation.

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