Law & the Courts

There’s Only One Side in the Constitution Debate

The document is inherently favorable to conservatives.

Whereas most people who retire from their jobs are given a small party and a gift, Justice Anthony Kennedy received from Whoopi Goldberg the rare honor of a ten-minute valedictory rant about her nether regions. Speaking on The View, Goldberg expressed her concern that President Trump’s next appointee to the Supreme Court will vote to overturn Roe v. Wade. To this threat she had one reply: “Get out of my . . .”

Let us say, wherever.

Justice Kennedy’s announcement has filled the Left with the worry that the Court will soon abrogate many progressive decisions and run hog-wild with ultraconservative ideology. The conflict between Republicans and Democrats over the role of the Court boils down to each side accusing the other of blatant judicial activism. One is tempted to conclude that the Left and the Right each have their own tendentious reading of the Constitution, and that each side’s justices merely promote its own political aims.

Unfortunately for the Democrats, this is wrong. We do not have two equally valid legal schemata, for the Constitution is inherently favorable to American conservatives.

Left-wing justices have for the past 70 years used the Supreme Court to make policy rather than arbitrate questions of law. Their modus operandi is to interpret the Constitution in light of the radical cause du jour. In Griswold v. Connecticut, they felt the need to overturn a state law banning the use of contraceptives, so they excogitated a right to privacy in the “penumbras” of several amendments, with Justice William O. Douglas serving as chief astrologer. In Obergefell v. Hodges, they wanted to decree “marriage equality,” so they created a right to homosexual marriage derived from the equal-protection clause. It does not matter whether those rights actually exist in the Constitution as written. It matters only what policy the justices want, and they’ll find some way to justify it. When conservatives accuse them of legislating from the bench, they defend themselves by claiming that the Constitution is a “living document,” which really means “progressive palimpsest.”

Justice Antonin Scalia, on the other hand, was known for sticking to his originalist philosophy even when it produced substantive results he didn’t like. The most famous example came in Texas v. Johnson, in which Scalia voted in the majority of a 5–4 decision that burning the American flag is protected speech under the First Amendment, even though he loathed flag-burning and said he would have banned it had he been king. In Maryland v. King, Scalia wrote a blistering dissent against the majority’s decision to permit taking DNA samples from arrested suspects and checking them against samples from other, unsolved cases. While he himself was hardly a bleeding heart, and later listed the case as one whose result contradicted his policy preferences, he sided with Justices Kagan, Ginsburg, and Sotomayor in a strict defense of the Fourth Amendment. He admirably demonstrated that the office of a Supreme Court justice is to be faithful to the Constitution, regardless of the political implications.

In the past, everyone understood this. Take, for example, the women’s-suffrage movement. The Court declared in Minor v. Happersett in 1875 that the 14th Amendment did not guarantee suffrage for anybody, leaving eligibility decisions mostly up to the states. (The 15th Amendment, ratified five years before the decision, did prohibit the use of race.) Today, the petitioners would wait for the composition of the Court to shift so that its jurisprudence could “evolve,” i.e., change for political reasons. But instead, the suffrage movement recognized that the Constitution as it stood did not give women the right to vote, and it sought an amendment, which it won in 1920.

The Constitution is not a no-man’s-land for American conservatives and progressives; it is the conservatives’ home turf, and the progressives must pervert it in order to make it say what they want it to say.

To overturn Roe — a consummation devoutly to be wished — would merely help to restore the Supreme Court to its proper function as a court. Progressives warn that such an action would constitute the trampling of women’s rights by religious freaks, but the Court would only be correcting its egregious overreach. The Court would not say that all abortion is unconstitutional but only that the states can ban it or allow it as they choose. This has the appearance of political motivation because decades of judicial activism have trained people to believe that the Court is supposed to produce this extraconstitutional gimcrackery. In fact, Roe is just bad law.

Leftists cannot tolerate this, however, because they are not interested in good law. They are interested in abortion being legal always and everywhere. Rather than wage an honest campaign to amend the Constitution to guarantee a right to abortion, they prefer to leverage the illegal fantasies of perfidious justices. It is hard indeed to tolerate the strident protests that Trump’s next appointee will endanger “our democracy” when one remembers that Roe foreclosed all democratic action on abortion. The overwrought appeals to democracy are just a ruse designed to preserve the Court’s tyrannical and undemocratic imposition of the Left’s homicidal agenda.

Meanwhile we are forced to listen to Whoopi Goldberg’s ululations about who’s in her whatnot, as well as demands from many leftists that the justices be term-limited or the Court packed. What the Constitution actually says is irrelevant to these people. They don’t want justices who will be faithful to the Constitution, because fidelity to the Constitution precludes decisions such as Roe and Obergefell. The Constitution is not a no-man’s-land for American conservatives and progressives; it is the conservatives’ home turf, and the progressives must pervert it in order to make it say what they want it to say. Judicial nominations are so “politicized” because conservative judges will adhere to the law while progressive judges will make up the law.

Anyone who needs proof of this should consider the fact that the main strategy of the pro-life movement is not to find justices who would rule all abortion unconstitutional, even though that is much more plausible than the holding in Roe. That is not because no one thinks that abortion ought to be illegal but because the Constitution doesn’t mandate it. Instead I, like many pro-lifers, support the passage of a constitutional amendment banning abortion, just as the suffragettes passed an amendment to secure their rights.

Justice Douglas wrote in the Griswold opinion that the Supreme Court does not sit as a “super-legislature,” but he proceeded in the next paragraph to super-legislate. His hypocrisy has plagued us to the present day.


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