I learned a lot from last week’s hearings – not about John Roberts but about some of those serving in the U.S. Senate.
For example, I learned that many of them have little concern or even respect for the Constitution. What they have instead are strong policy preferences. And they want to be told that those policy preferences are rooted in constitutional principles, even when it is obvious they are not.
To take just one example, Roberts was asked if he found in the Constitution a “general right to privacy.” Now surely the senators have read the Constitution and the Bill of Rights and so they know that a “general right” to privacy is to not to be found in those documents.
Surely, they understand that if there were a “general right” to privacy it would apply not only to abortion; it would apply “generally,” as well. It would mean, for example, that in the privacy of one’s home one could ingest drugs; because if privacy means the government is prohibited from interfering — in any way for any reason — with your reproductive system, it must mean that the government is prohibited from interfering with your digestive system as well.
And commercial sexual transactions between consenting adults in the privacy of one’s home? Surely that would be covered, too.
But these senators are not libertarians. They want a “general right” to privacy that protects only one activity.
We also learned that many of these lawmakers aren’t eager to actually make laws. After all, if they would like the Constitution to include a “general right to privacy,” or an “absolute right to die” (another non-existent constitutional right that Roberts was pressed to say he had spotted in the Constitution) they have the power to draft Constitutional amendments explicitly establishing such rights. Or, with less heavy lifting, they could pass federal laws establishing such rights, presuming only that such laws would pass constitutional muster.
But they don’t want to do any of that. They want instead to appoint Supreme Court justices willing to take the Humpty Dumpty approach – to tell them and other Americans that the words of the Constitution mean exactly what the senators choose them “to mean – neither more nor less.”
“The question is,” said Alice, “whether you can make words mean different things.”
“The question is,” said Humpty Dumpty, “which is to be master–that’s all.”