Friday, June 29, 2018

Thank You, Justice Kennedy. You Have Imposed Upon Us Long Enough

The case of Anthony Kennedy's retirement is troubling to me.  It is troubling because the search for his replacement is being framed as a case of the Right (conservative) Court versus the Left (Marxist, Progressive) Court going forward.  But it should be a case of a Court that respects the Constitution.  The Leftist Court is the one promoting the idea of a "living Constitution."  That is, the Constitution means whatever the Leftists want it to mean at any given moment.  .

But the Constitution is neither Right nor Left.  It is rather a set of procedures for us to work out our differences.  What has happened is that the Court has taken it upon itself to determine the outcomes despite the clear meaning of the words written by the Founders.  The great Justice Antonin Scalia highlighted the necessity of going back to the Constitution and making a determined effort to seek out the meaning of the words of the Constitution, then apply those words to the issue before the Court.  This doctrine, not always followed, but held up as a principle none the less, was known as "Originalism."

Originalism is often hard work.  One has to refer back to the original document.  One has to look at the context in which is was written, of which there is no shortage of material to consult.  The Founders were literate men who wrote a great deal, and reading these other sources helps to flesh out the original meanings.  It also requires great restraint.  There are many issues that simply are not in the scope of the Constitution.  Abortion and gay marriage are two items that should be decided not at the Federal level, but State by State by the voters, the legislatures and governors, and the State courts.  The is no reason why we should have a nationwide consensus on everything, and in fact, it is clear we do not, despite 100 years of the "living Constitution" fiction.

Jonah Goldberg, over at Townhall.com today has an article entitled 'Living Constitution' Faces a Mercy Killing on the retirement of Justice Anthony Kennedy. Kennedy's famous mercurial nature might one day accidentally affirm a Constitutional provision, as in Heller and the next day manufacture rights out of whole cloth as in Obergefell. It is not Kennedy's alleged conservatism, or his liberalism that I find disagreeable, but his failure to do his job. The Constitution was not merely the product of a few men, but in fact is the culmination of centuries of Christian, philosophical, and political thought, millennia of recorded history, combined with the extraordinary experiences of the men themselves, to create what I consider an inspired document. It is the height of arrogance to believe that oneself is more intelligent than all those combined individuals, and can perceive, as they did not, what they SHOULD have written but for their utter stupidity.

 Goldberg:
This gnashing of teeth and rending of cloth is a symptom of the dysfunction and corruption of the constitutional order. The reason Kennedy's retirement matters so much is that he was the swing vote -- the justice who could bequeath victory or defeat to the liberal or conservative bloc in any important case that divided the court.
And the reason the swing vote matters so much is that we've made the Supreme Court far too important in our lives. By being the deciding vote on so many issues, Kennedy in effect became the court itself, making him the de facto incarnation of the judicial branch, the way the president is the physical personification of the executive branch. This became all the more problematic because Kennedy's philosophy of judicial review all too often took the form of a deep personal inventory of his feelings rather than of the Constitution's text.
At this point, if falls to President Trump to appoint his replacement. Trump's pick of Neil Gorsuch was a brilliant move. We can only hope that this pick will be similarly inspired. Mitch McConnell has promised a Senate vote on the confirmation of the appointee by this fall. We'll see. The Democrats (read Progressives) have promised to oppose whoever is appointed. That sounds unreasonable, but should play well to their base. This summer will thus be filled with sound and fury, not to mention riots and street action.

Keep your powder dry, and make some popcorn. 

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