Last week we were
again reminded that Americans are living in a post-constitutional era.
The doctrine of enumerated powers, which holds that the federal government
is limited to those functions delegated by the American people through the
Constitution, has been discarded and relegated to the outer fringes of our
nation’s political dialogue. The challenge for con-cons (constitutional
conservatives) is how to confront and correct this radically reshaped regime.
The first reminder came on the occasion of California State Supreme Court
Justice Janice Rogers Brown’s nomination to a federal judgeship on the Circuit
Court of Appeals in Washington, D.C. Senator Charles Schumer (D-NY)
has already announced his intention to resort to a filibuster to prevent
her nomination from being approved by the full Senate. Her offense?
Believing that judges should subordinate their political and social agendas
to their duty to neutrally apply the written law. She categorically
rejects the idea that judges should act, in her words, as “philosopher kings.”
"The quixotic desire to do good, be universally fair and make everybody happy
is understandable,” she wrote in one of her dissenting opinions. "There
is only one problem with this approach. We are a court."
While Justice Brown’s views are consistent with the Founding Fathers’ intended
role for the judiciary, they are at odds with the goals of the many liberal
advocacy groups arrayed against her. The reaction to her nomination
from these groups and the senators who carry their water brings to mind another
Brown quote: "The preservation of a viable constitutional government is not
a task for wimps." This is especially true in a climate that regards
this very task, once universally held to be the central duty of all public
officials, as an illegitimate manifestation of political extremism.
Scholar and author Thomas Sowell, who has written a three-part defense of
Brown in his nationally syndicated column, understands why judges committed
to the Constitution and the rule of law pose such a threat to defenders of
our post-constitutional order, particularly on the left: “Much of the liberal
agenda can only be imposed by judges because elected officials cannot keep
bucking public opinion. A judge who opposes judicial policy-making is a serious
danger to their agenda and they will try to stop such nominees at all costs.”
Even if it means concentrating on a nominee’s speeches rather than her actual
casework as a judge. Democrats on the Senate Judiciary Committee grilled
Brown on an April 2000 speech to the Federalist Society in which she said
“where government moves in, community retreats, civil society disintegrates
and ability to control our own destiny atrophies,” resulting in “a debased,
debauched culture which finds moral depravity entertaining and virtue contemptible.”
Senator Dianne Feinstein (D-CA) incredulously asked, “You really believe
that?” But aren’t the things Brown noted in her remarks exactly what
we have observed with the welfare state, particularly the aspects that even
many liberals realized not so long ago cried out for reform?
Nevertheless, this has led some to brand Brown an anti-government ideologue,
including one of her erstwhile supporters. The Sacramento Bee
reported that University of California at Berkeley constitutional law professor
Stephen Barnett recanted his endorsement of Brown’s nomination. He
had been one of 16 California law professors to sign a letter backing her
for the judgeship and praising her integrity, but later decided her speeches
(as opposed to her actual work on the court) reflected “extreme and outdated
ideological positions” that place her “outside the mainstream of constitutional
law.” This is despite the fact that the Founding Fathers were known
for their deep skepticism toward centralized government power.
We have reached the point where those who wish to faithfully apply the Constitution
as written and accept its limitations on federal power are considered “outside
the mainstream of constitutional law,” and that those who agree with the
Framers’ beliefs about the role of government are summarily disqualified
from federal judgeships. Janice Brown finds herself in the same position
as Charles Pickering, Bill Pryor and Miguel Estrada.
Taking the Constitution seriously is not just a liability in the judiciary;
it poses problems in the political realm as well. In the same week
the Senate was locked in a partisan battle over Justice Brown, it passed
a federal ban on partial-birth abortions by a vote of 64 to 34 so it could
be sent to President Bush to be signed. While it is gratifying to see
politicians defend life by such a lopsided margin, even if only in particularly
outrageous cases where the partial delivery of the fetus produces an act
that pretty unmistakably resembles infanticide, this ban can’t make sincere
constitutionalists feel anything but conflicted.
Under the Framers’ Constitution, Congress only may only legislate in enumerated
areas. The Tenth Amendment leaves all other areas to the states and
the people. Homicides, for example, are prosecuted at the state level.
Since abortion, partial-birth or otherwise, is not mentioned in the Constitution
– either as a right or an area subject to congressional regulation – it would
seem that any such legislation would properly be in the states’ domain, which
is precisely where abortion policy was set for most of U.S. history.
That is, until Roe v. Wade nationalized the issue by sweeping aside
all existing state laws on abortion in 1973. The problem with this
ruling is that it is, in the words of John Hart Ely, “not constitutional
law and gives almost no sense of an obligation to try to be.” Those
who oppose Roe as unconstitutional but also object to the policy it
imposed are placed at a competitive disadvantage in the political arena.
One side of the debate is willing to impose its will regardless of what the
Constitution says, and it has the bulk of the legal establishment and countless
credentialed experts in constitutional law to back it up. The other
side can either follow the Constitution and be disenfranchised or face political
reality and battle on their opponents’ unconstitutional terms.
Rep. Ron Paul (R-Tex) referred to this tension when he talked about his vote
for the partial-birth abortion ban and other issues in an interview with
The Hill earlier this year: “If there’s any vote I’ve
ever cast that might be technically on the fringe [of constitutionalism],
that would be that one. The justification in my mind is one; it’s about
the most horrible act that one can conceive of … as well as the fact that
the law was nationalized by the courts in Roe v. Wade.” Taking
natural law into account, I agree with Paul’s position on this constitutionally
problematic piece of legislation. But it highlights the difficulty
of being a constitutionalist in a political order that has fundamentally
rejected the idea that the Constitution limits the scope of federal decision-making
authority in any substantive way.
Of course, we pretend America is the constitutional republic it always was.
But we are living under a Constitution that would not be recognizable to
those who wrote it. Rather than understanding the value of decentralizing,
limiting and enumerating power for its own sake, our contemporary lawgivers
have come to regard the Constitution as an imperfect statement of liberal
ideology to be “improved” upon by each successive generation. But this
robs the constitutional text of any fixed meaning other than that which the
various branches of the central government choose to suffuse it with, defeating
the entire purpose of constitutional government in the process.
Like something out of Orwell’s 1984, those who distort the Constitution to
suit their own social agendas are said to be its defenders while those who
would restore it are it are dismissed as out-of-the-mainstream extremists.
Those I call “con-cons” have a long way to go toward getting the old constitutional
republic back, but perhaps a good place to start would be to understand how
completely we’ve lost it.
W. James Antle III is a Senior Editor for EnterStageRight.com and a primary columnist for IntellectualConservative.com. He is a freelance writer from Boston, Massachussetts.