- The Washington Times - Saturday, December 16, 2006

Is Supreme Court Justice Stephen Breyer an “idiot”? Justice Anton Scalia may think so. In a speech to the Federalist Society, Justice Scalia said, “[Y]ou would have to be an idiot to believe that… [t]he Constitution… has to change with society, like a living organism, or it will become brittle and break.”

After reading his book, “Active Liberty,” (see David Limbaugh’s column of Dec. 7 on Supreme Court Justice Breyer) I concluded that is precisely what Justice Breyer thinks, although he is careful to hide his belief in the discredited “living organism” theory of constitutional interpretation behind the disguise of his novel “active liberty” descriptor. It is but a long-winded academic excuse for the failure of Supreme Court Justices to do good lawyering, which has been largely out of favor in the high court on cultural and political cases since President Eisenhower gave Earl Warren Earl keys to the joint in a rare mental lapse.

Justice Breyer’s judicial creed is dangerous to the republic. Ideas have consequences. And bad ideas, even from a nice man, can have nasty consequences. To paraphrase, “Supreme Court decisions wear tall boots and once set loose are not easily called back.”

The Constitution instead at its core is what it rather clearly and plainly was when ratified:

(1) A restrained delegation of power to the national government.

(2) A balanced restraint on concentration of power in and its exercise by each branch (including the judiciary) of the national government.

(3) A broad reservation to state legislatures and the people of all powers not expressly given to the national government.

(4) And a considered and popularly ratified determination that, absent formal amendment, this was the essential course, these the most effective means, of achieving national unity and strength, while preserving the authority of the states as vital to maintaining ordered liberty and popular sovereignty.

Except for its sheer fabrication of the notion that the 14th Amendment applies the first 10 amendments to the states, the most important of the Supreme Court’s distortions of the real Constitution is that of the law of abortion. That body of law also provides the most damning test of the validity of Justice Breyer’s flawed “active liberty” notion of constitutional interpretation.

It is inconceivable Justice Breyer, who has steadfastly supported an essentially unrestrained “right” of abortion, now would profess to instruct the country on the proper way to interpret the Constitution, yet, in doing so, completely ignore the court’s abortion cases, unless those decisions flatly contradict his ideological message.

Unsurprisingly, “Roe vs. Wade” and its “offspring” (which, sadly, could have been aborted, but for Justice Breyer and the court’s other “active liberty” advocates) totally refute the thesis of Justice Breyer’s creed, that “active liberty” is an intellectually valid, rationally coherent, constitutionally-honest method of judicial interpretation.

“Active Liberty,” argues that in closely disputed cases where its meaning is unclear the Constitution should be interpreted so as to advance its “democratic” purposes, which are “core” to the document.

Yet, Roe and its offspring did precisely the opposite. In a federal system in which powers not delegated to the national government are reserved to the states and the people, the abortion cases stripped the states and the people of what until then was their clear authority to legislate on such matters of social and moral concern, and replaced local, democratic control of abortion, where it had rested since before enactment of the 14th Amendment, with national, judicial control, where no honest reading of the Constitution could place it. In effect, Justice Breyer’s contrived “privacy” theory in his Supreme Court decisions trumped the Breyer “core democracy” theory as articulated in his new book.

So much for “active liberty”: In essence, because they flatly refute his thesis, the most legally significant (in terms of equal protection of the law and the truly fundamental liberty, the right to life), culturally divisive, dubious, antidemocratic decisions in Supreme Court history have been conveniently ignored by Justice Breyer.

This self-professed champion of continuous constitutional resuscitation, the ongoing breathing of “active liberty” into the original constitutional document, has ignored the very compelling cases that demolish his thesis.

That is not oversight by the justice; it is intellectual dishonesty.

TIMOTHY HARKER

Potomac, Md.

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