Bench Memos

NRO’s home for judicial news and analysis.

Living Constitution, Dying Republic


In case you browse your way here first and not to the NRO homepage, don’t miss Ed Whelan’s article on what’s at stake in this election where the Supreme Court is concerned.  We already have five “living constitutionalists” on the Supreme Court–counting Anthony Kennedy, as all too often we must–and an Obama presidency would at the very least maintain that status quo for years to come, and at worst add to their numbers.  The prospect is grim enough that Hadley Arkes, writing at The Catholic Thing, believes that under an Obama presidency, we might have to cling to a tiny shred of gratitude that Justice Kennedy has at least been willing to countenance the laws against partial-birth abortion.  That’s what is called grasping at straws.

And could an Obaminated Supreme Court begin to engineer the “positive rights” of a redistributionist state?  Andy McCarthy says maybe so, especially if the Democrats muster the votes to pass the International Covenant on Economic, Social, and Cultural Rights, which has languished without Senate ratification since the Carter years.  In Medellin v. Texas last March, the Supreme Court rebuffed an effort to make a treaty’s obligations among nations the controlling law of individual rights in American courts.  But there were three and a half votes to go the other way, reading Justice Stevens’ concurrence as the half to go for the treaty’s meddlesome effect in our jurisprudence.  A Supreme Court with, say, Harold Koh sitting on it could subject us to even more government by judiciary, with “international law” as the fig leaf covering the aggression against the Constitution.

“A republic, if you can keep it,” is what Ben Franklin said the framers had given us at Philadelphia.  Next Tuesday it’s up to us to keep it.


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