As is often the case, one of the most overlooked issues in this fall’s Senate elections has been the importance of the Senate’s role in either confirming or blocking some of the radical judges Barack Obama has nominated. But to see the level of thought, and the deep roots in American principles, that a good judge should exhibit, read the text (when it is published) of the Joseph Story Lecture delivered October 22 at the Heritage Foundation by Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit.
Those in attendance last Wednesday night were treated to a 50-minute tour de force of American foundational reasoning. Judge Brown found a novel, and useful, analogy for what conservatives must do to safeguard the U.S. constitutional system and the liberties it protects. Conservatives, she said, tend to “speak of restoring, reviving, rehabilitating, [or] repairing the Constitution.” All those words, she said, are good. Even better, she suggested, would be the phrase “repointing the Constitution.”
Repointing, she explained, is what owners of brick row houses must occasionally do to keep their walls intact. It involves replacing the mortar between the bricks — and the new mortar must possess properties similar to those of the original. More modern material might seem stronger, she explained, but if the modern mortar is too strong, it can actually crack the bricks over time — and “the result is a pile of rubble.”
Likewise, when modern leftists try to insert “progressive” notions of perfection into the joints of the Constitution, they often end up degrading the edifice of liberty or risk destroying it altogether.
Brown suggested that even when we moderns fill in the Constitution’s gaps or relieve some of its inherent tensions — gaps and tensions that often are there by design — we should do it only with material philosophically consonant with the original understandings. Repoint, rather than renovate or replace.
Chief among the philosophical properties of our constitutional mortar, she said, is “the kind of governmental structure that made liberty possible.” Here she paid homage to the conservative understanding that the greatest protection of American freedoms is not to be found in the Bill of Rights, important as it is, but in the structural integrity of the tripartite government itself. Fealty to its strictures does far more to preserve liberty, she said, than does obeisance to supposedly lofty ideals of “human dignity” and abstract “rights” invented by elites — elites who seem to believe more in the perfectibility of man than in the moral authority of God above a mankind with a nature neither wholly good nor wholly evil.
“In trying to design a government of the people, by the people, and for the people, we must relish the tension that is an inherent part of our humanity,” Brown said. “We are not brutes; we are not gods.” Progressives act as if elites have godlike wisdom that gives them leave to run a state that “should force citizens to be neutral, tolerant, egalitarian, and open-minded.”
We should guard against this “ominous view that government should force citizens to accept a singular, secular vision of the good,” she warned. “This is where I think deference to the enlightened elite will take us — to a sterile, secular, uniformly dull, and featureless vision of the future. . . . The newer understanding constrains, constricts, and reduces. This new mortar does not strengthen; it shatters the whole edifice.”
Judges who try to impose some elite’s version of ultimate human dignity, Brown said, commit “the error of indifference to the writtenness of the Constitution.”
It was in Brown’s insistence on the written text of the Constitution that she took sides — the correct side, many of us would argue — between two subgroups of judicial conservatives. (She did not name the champions on each side of the somewhat friendly intramural debate among judicial conservatives, but I will.) On one side are those who, like Fourth Circuit Court of Appeals judge J. Harvie Wilkinson, believe in “judicial restraint” above almost all else. Their idea — quite valid to a point, but probably not to the degree Wilkinson avers — is that judges of all ideological persuasions are (in reviewer Jeffrey Rosen’s words) “too quick to second-guess the choices of legislatures.”
Brown, along with, most prominently, Justice Clarence Thomas, argues the other side:
Writtenness has two sides. Conservative judges have vigorously resisted the importation of extra-textual ideas. They have been much less adept at effectuating limits [including those on legislators] that are in the text. . . . It is no more principled to permit actual limits to be written out of the Constitution than it is to insert obligations.
Good judges, she argues, do not put themselves above the Constitution in order to implement some cosmic justice to which the Constitution imperfectly pointed; instead, they work at the bidding of the written Constitution so that American citizens can try to work out that justice on their own. It is true, of course, that the Constitution is an attempt to put into practice, and protect, the operations of the universal truths identified in the Declaration of Independence. But those truths, while recognized by human reason through a process validated by the entire people of the nation, are not truths created by the extra-wise human reason of cultural elites. Instead, the truths preexist human reason and emerge not from the ever-more-perfectible mind of man but only from “something more awesome, powerful, glorious, worthy of reverence and unquestioning obedience.”
In sum, Brown said, the principles embedded in the Constitution arise from “the God of the Logos: The great I AM.”
Judges must defer most avidly not to the legislative or executive branches but to the Constitution that rightly governs them all — specifically because that Constitution was crafted to impose limits on the rulers themselves, because it was crafted with a due sense of the fallibility of all men, including those who would rule others.
Judges who insist that the other branches abide by the actual “writtenness” of the Constitution, rather than follow the judges’ own sense of universal justice, are merely insisting that all who govern must leave some play in the joints through which citizens can respond in their own ways to the all-wise biddings of the Almighty.
It is good for conservatives, indeed for all Americans, to repoint but not replace the mortar of our constitutional government. It is in the humility of that painstaking process that we can repoint our way, however imperfectly but with all faithful intent, toward nature’s God.
— Quin Hillyer is a contributing editor for National Review. Follow him on Twitter: @QuinHillyer.