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Obama's Supreme Court By: Henry Mark Holzer
FrontPageMagazine.com | Friday, June 20, 2008


Last week’s Supreme Court 5-4 decision in Boumediene v. Bush—holding that alien unlawful enemy combatants have a constitutional right to use habeas corpus in American federal courts to challenge their detention—came as no surprise to those of us who have watched the “Living Constitution” virus metastasize since that ideological disease first began to infect the judiciary during the Warren Court era.

Those who subscribe to Living Constitution ideology believe that the founding principles of this Nation are passé, that the Declaration of Independence’s ringing endorsement of limited government and individual rights is outdated, that the Constitution’s creation of a representative republic is from a long past moment in history, and that the Bill of Rights is not a restraint on government but rather a source of newly invented “rights.”

The Living Constitution’s partisans’ high priest was the late Warren Court era Supreme Court Justice William J. Brennan, Jr. According to him, in a 1985 speech, the Constitution “embodies the aspiration to social justice, brotherhood, and human dignity that brought this nation into being. * * * Our amended Constitution is the lodestar for our aspirations. Like every text worth reading, it is not crystalline. The phrasing is broad and the limitations of its provisions are not clearly marked. Its majestic generalities and ennobling pronouncements are both luminous and obscure.” (My emphasis.)

Brennan was saying that: the Constitution, rather than delegating specific powers to the federal government (Articles I, II and III), respecting state sovereignty (Tenth Amendment), and recognizing the existence of enumerated (Amendments I-VIII) and unenumerated (Amendment IX) rights, instead embodies amorphous “aspirations.” Whose aspirations, Brennan did not inform us.

But Brennan did tell us what those aspirations are: “social justice, brotherhood, and human dignity.”

We’ve learned the hard way that by “social justice” Brennan meant that the Supreme Court would allow Minnesota to rewrite mortgage contracts to benefit defaulting farmers (Home Building & Loan Association v. Blaisdell). “Brotherhood” would permit law schools to racially discriminate in the name of diversity (Grutter v. Bolinger), and Roe v. Wade would foster murder of the unborn to protect privacy.

After his paean to “social justice, brotherhood, and human dignity,” Brennan’s 1985 speech continued: “When Justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is . . . the community’s interpretation that is sought. * * * But the ultimate question must be, what do the words of the text mean in our time. For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. * * * Our Constitution was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized.” (My emphasis.)

Let’s analyze Brennan’s startling statements piece by piece.

“The phrasing is broad and the limitations of its provisions are not clearly marked.” Doubtless Brennan was referring, for example, to Article I “(The House of Representatives . . . shall have the sole Power of impeachment”), Article II (“The executive Power shall be vested in a President of the United States”), Article III (“The judicial Power of the United States, shall be vested in one supreme Court”), Article IV (“No new State shall be formed or erected within the Jurisdiction of any other State”), Article V (“No State, without its Consent, shall be deprived of its equal Suffrage in the Senate”), Article VI (“No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States and Article VII (“The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States ratifying the Same”)—and of course in the Bill of Rights, for example, the First Amendment (“Congress shall make no law”). (My emphasis.)

If this “phrasing is broad” and if these “limitations . . . are not clearly marked,” then nothing in the Constitution and Bill of Rights is—which is exactly what Brennanites want, as they worship their Living Constitution.

“When Justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is . . . the community’s interpretation that is sought.” Here, Brennan was wrong on two counts. Putting aside what “community” the judges are supposed to speak for (village, town, city, county, state, country, hemisphere, continent, UN, EC, NATO?), proper constitutional interpretation speaks for what the words say and what they meant at the time they were written, and to the men who wrote them. Nor are today’s justices supposed to speak “for themselves alone.” Who cares what they think, compared to the Constitution’s words and their meaning?

What do the words of the text mean in our time, Brennan asks about the Constitution. Thus, in the world of the Living Constitution, the “in our time” requirement that the President be at least 35 years of age should really mean 60 because, after all, life spans are much longer today than in 1787. Or the words “[n]o state shall impair the obligation of contracts” should mean, “in our time,” except when farmers need debt relief—as the Court held in Home Building & Loan Association v. Blaisdell.

“The genius of the Constitution,” Brennan told us, “rests not in any static meaning it might have had . . . .” “Static,” in Brennan’s context, is of course a pejorative term, suggesting that anything fixed and immutable is somehow undesirable—though Brennan would doubtless not see the First Amendment as undesirably static.

“In a world that is dead and gone . . . .” Putting aside the melodrama of this passage, if, as Brennan says, the world of the Framers is “dead and gone”—where government was limited, individual rights paramount, federalism understood, state sovereignty protected—that is all the more reason to now interpret the Constitution in accordance with the principles that ruled in those bygone days.

“But in the adaptability of its great principles . . . .” It is facially contradictory for Brennan in one breath to condemn “static meaning” and in the next to laud “great principles,” because if principles are indeed great, like not bearing false witness, their strength is in being “static.”

“To cope with current problems and current needs.” Immediately after the Civil War, when the Fourteenth Amendment was adopted, there was no “current problem” about some private land being burdened by racially restrictive covenants, and there was at that time no “current need” for Negroes to move into formerly white suburbs. However, such a problem/need did arise after World War II. Thus, according to Brennan, it was appropriate that the Equal Protection Clause, which was never intended to invalidate concededly valid private land contracts, should be employed to hold unconstitutional judicial enforcement of those covenants. Brennan should have asked the Japanese-Americans who were shipped off to internment camps after Pearl Harbor if they thought the litmus paper of constitutional interpretation should be “current problems and current needs.” Or the dead American draftees who perished in Vietnam. Or, for that matter, Negro slaves on the day the Dred Scott decision came down.

“Our Constitution,” Brennan concludes, “was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized.”

Ah Ha! The “static meaning” that Brennan decried earlier in his speech was apparently not intended to be static after all.

Nor, apparently, was it intended that the clear text of the Bill of Rights should preserve the individual rights guaranteed by the Constitution’s first nine amendments.

In effect, Brennan would have us believe that the Constitution was a mere outline for a script yet to be written by judges about “new principles,” which the Framers were apparently too dull to have “sufficiently recognized”—“new principles” like sterilizing the imbeciles, outlawing capital punishment, inventing “prisoners’ rights,” imposing racial quotas, murdering the unborn, restricting political speech, and much more.

William J. Brennan, Jr., like many of his colleagues then and now (today, think Justices Stevens, Kennedy, Souter, Ginsburg, Breyer), and countless other federal and state judges throughout the United States, are not just liberals, which would be bad enough. They are, philosophically, collectivists and statists who believe with the orthodoxy of zealots that “rights” are created by society and its Platonic guardians, the judges, and that through the exercise of government power utopian goals can be achieved without regard to constitutional principles or the moral code that underlay them at the Founding.

In short, Brennan and his ilk are utterly indifferent to the proper role of judges, and see themselves as uber-legislators imposing their personal policy preferences on the unwashed in the guise of constitutional interpretation.

Which bring us to the current election and presumptive Democrat Party nominee, Barack Obama.

There are some serious concerns if the fate of the federal judiciary, let alone the Supreme Court, falls into Obama's hands (especially with a compliant Senate). Let's take a look at the words of Obama himself:

On July 17, 2007, Obama made a speech in Washington, D.C. to the country’s leading abortion-meisters, “Planned Parenthood.” In the words of NBC reporter Carrie Dean, Obama not only “leveled harsh words at conservative Supreme Court justices,” but “he offered his own intention to appoint justices with ‘empathy’.”

“Empathy,” according to Webster’s New World Dictionary of the American Language, is “the projection of one’s own personality into the personality of another in order to understand him better; ability to share in another’s emotions or feelings.”

Thus, we have been unmistakably warned that Obama will appoint Supreme Court justices who will not honestly interpret the Constitution, Bill of Rights, and Fourteenth Amendment—let alone on the basis of what they say and meant to those who wrote them—but who, instead, will project their own personalities into others to understand them better; justices who can share in those others’ emotions or feelings.

And who might Obama’s empathy-receivers be?

Obama himself told us in that same 2007 Planned Parenthood speech: “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.” (My emphasis.)

So much for the classical liberal philosophy that was at the founding’s core and in its fundamental documents. From now on, constitutional interpretation Obama-style is to be through the eyes of whom he sees as society’s alleged victims.

Obama’s confession drops Brennan’s Living Constitutionalism into yet a lower rung of hell. His confession reveals that while the Brennanites fed the Living Constitution’s voracious appetite in order to achieve the amorphous goals of “social justice, brotherhood, and human dignity,” Obama will nurture the beast with what’s left of limited government and individual rights, all in the name of “empathy”—a code word for something much darker: sacrifice of constitutionalism to the needs of society’s perceived victims.

This perversion of America’s essence—individuals as supreme, with government as their servant—is Brennanism squared. While our Nation has been able to survive Brennanism—though with the recent Guantanamo decisions, especially Boumediene v. Bush, who knows?— will it be able to survive Obama-appointed Supreme Court justices?


Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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