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The Constitution: Dead or Alive?

September 3, 2005 1:02 PM

The portents still seem to point to a fairly easy confirmation for Roberts, so perhaps I�m not really justified in being as worried as I was a couple of posts back, but I thought I would address Richard�s interesting suggestion that if the Democrats succeeded in blocking Roberts, the next nominee would, in order to teach the Democrats a lesson, be an even more consistently conservative jurist (say, perhaps, someone like Edith Jones, whose name has been floated, and who would be a splendid choice). Richard has suggested that the smart move for the Democrats and their liberal allies at this point is to accept Roberts, and then proceed to draw the line (as Cass Sunstein implied in The Wall Street Journal the other day), and suggest that anyone to the right of Roberts would be so unacceptable that it would amount to the �extraordinary circumstances� that would justify a filibuster. Better to compromise their principles on Roberts, then, and be ready to fight on someone like Jones, who could push Constitutional law much further in a conservative direction.

But this assumes that Roberts cannot be successfully demonized in a manner that suggests that not only is he bad, but anyone more conservative would be worse, so that both Roberts and a successor conservative nominee could potentially be defeated, probably through filibusters. After all, after Bork was Borked, we got Anthony Kennedy, hardly to the right of Bork. The foes of Roberts no doubt believe this--a less conservative nominee--would be likely if Roberts were defeated. Now I join Richard in thoroughly disagreeing with PFAW and NARAL on what kind of a Justice ought to be serving on the Court, but if we look at the world from their ideological point of view, we can understand how they can believe that Roberts is the enemy. Such folks might actually be convinced that Roberts, replacing O�Connor, could be in a new 5 to 4 majority that would sustain restrictions on partial birth abortion, require parental notification, and abortion clinic regulation; that might restrict political conduct on the part of unions; that might give states and localities further leeway in allowing aid to sectarian schools or allowing the dominant Judeo-Christian civic religion into the public square; or that might prevent the federal legislature from expanding the reach of the federal government into local domestic affairs. In the academy, in the blue states, and in the main stream media all of these might seem like terrible risks, or at least portend turning back the clock on the right to privacy (which Richard cherishes), or affirmative action, and very possibly bringing us back to a national culture closer to the fifties or even the twenties. Let�s give Erwin Chemerinsky his due; if we take him at his word, that�s what he�s concerned about.

Richard and I don�t, but if one really believed in a �living Constitution,� and believed that the Warren, Burger, and Rehnquist courts got it right in decisions such as Brown, Roe, Casey, Lee v. Weisman, and Lawrence v. Texas (just to pick some samples), why should one welcome someone like Roberts who has criticized the logic of these decisions, and the notion that the Supreme Court has the discretion, acting in the purported interests of the people to further social change or redistribution. I know, I know, it�s been our tradition that a President is entitled to a presumption of fitness on the part of his nominees, and, until now, naked result orientation has not been accepted as a valid criticism of a nominee. But we have to remember, these are people who think they are fighting evil, and they�re the good guys. As Chemerinsky himself makes clear, he believes arguing that a conservative nominee would roll back rights worked in Bork�s case, and ought to work in Roberts�s. Roberts doesn�t look as strange as the bearded Bork did, and he doesn�t carry the baggage of firing Archibald Cox, but he worked for Ronald Reagan, and to Chemerinsky and his ilk, that�s just as bad.

Richard and I believe that if the framers had wanted the nine Supremes to function as an ongoing Constitutional Convention empowered to implement its revisions without the bother of ratification, there would be no Article V Amendment process in the Constitution. The idea of a �living Constitution,� however, is entrenched in most of the academy, and maybe even in the American popular mind. Scalia has said he prefers his Constitution �dead,� and he�s right, but it�s a hard sell. We still have some reason to be uneasy.




Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.