The Corner

Law & the Courts

The Clouded Crystal Ball, Supreme Court Edition

In response to Have You Gone Pumpkin Picking Yet?

Yes, Wesley, now I fully appreciate the depths of Kennedy’s unreliability. I should know better than to make predictions; I think the last event I called correctly in advance was the 1973 Belmont Stakes.

Progressives (or technocrats) act as if the Constitution had a hidden clause: “The purpose of this document is to promote equality and fairness, and every part of it must be interpreted in accordance with that goal.” We’ve all heard the story about the time Learned Hand, after lunch with Oliver Wendell Holmes, said in parting, “Do justice, sir,” to which Holmes shook his head and replied, “My job is to apply the law.” This story would bewilder a modern progressive, to whom those are just two slightly different ways of saying, “Enact progressive social policy.”

I wrote in a book review once that the basic distinction between Right and Left when it comes to the Constitution is “rules vs. tools”: Conservatives see the Constitution as a set of rules that must be followed, while liberals see it as a box of tools that can be used to put their policies into effect. And if you have to use a chisel as a screwdriver or bang in nails with a pair of pliers, it’s no problem as long as the thing gets built.

It’s not so much a matter of ends justifying means as of ends creating means: If a given interpretation will lead to “social justice,” that in itself makes the interpretation correct. This principle turns the 14th Amendment into a Swiss Army knife and the Commerce Clause into a roll of duct tape. They devise new uses for dusty old buggy whips like the 13th Amendment, and even the forlorn Third Amendment was pulled out of the back of a drawer somewhere to be cited in Griswold v. Connecticut (and is now being invoked by the Left and the Right to oppose NSA surveillance). And they think nothing of turning the strictest rules on their heads, so that “shall not discriminate on account of race” means “must discriminate on account of race” and “freedom of speech” requires restricting speech. What, you thought these provisions actually mean what they explicitly say? Only until they get weaponized by a progressive.

Your term “technocracy” (“rule by experts”) is apt, because the idea behind all this is that the people should be allowed to govern themselves only when the result fits the experts’ ideas. Thus judges nullify ballot propositions that didn’t go the way they wanted, George Orwell without irony extolled rule by the elite over “bourgeois democracy” (i.e., “democracy”), and Obama says that if the people’s representatives don’t pass the laws he wants, he’ll ignore the Constitution and proclaim them himself. The Mr. T Experience put it best with the title of one of their (lesser) songs: “Leave the Thinking to the Smart People.”

Fred Schwarz — Fred Schwarz is a deputy managing editor of National Review.

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