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Gary M. Galles - Contributor
Galles is a professor of economics at Pepperdine University.
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Judges for Respecting the Constitution?
Preserving an activist, liberal judiciary…
[Gary M. Galles] 11/12/04
Faced with four
more years with President Bush in the White House, liberals are
gearing up campaigns against the conservative judges they expect
to be nominated, including more than one Supreme Court justice.
But why do they consider it so important to keep such judges
off the bench?
Angeles Times editorial against one of Bush's first-term nominations
have provided the best answer. It opposed one
of America's foremost constitutional scholars because he "has
repeatedly asserted that Supreme Court precedents should not
bind the current court." That sounds like dereliction of
a judge's duty, but it was just a misleading spin on the fact
that he, and others sharing his approach, proposed to be faithful
to the Constitution. That is what opponents are determined to
legal scholars have long taken seriously our founding documents.
In particular, they have taken seriously the idea
that the Constitution is the highest law of the land. This is
clearly what our founders had in mind, as demonstrated in Federalist
78: "[W]here the will of the legislature, declared in its
statutes, stands in opposition to those of the people, declared
in the Constitution, the judges ought to be governed by the latter
rather than the former." But this puts them at odds with
those who think the Constitution is a "living document." The
reason is that if the meaning of the Constitution can easily
be changed by innovative judicial interpretations, rather than
being required to attain the degree of consensus necessary to
survive the difficult process spelled out by our founders for
establishing constitutional changes, then it cannot be the highest
law of the land in practice.
That is why
understanding the "conservative" attitude
toward precedent is so important. It does not advocate ignoring
precedents, as critics portray. It does, however, involve overturning
precedents that are inconsistent with the Constitution. It is,
in essence, the belief that we should be faithful to the Constitution,
and the limited federal government of enumerated powers it created,
as the earlier, controlling precedent.
is that such an approach threatens precedents that created
rights out of thin air (or out of "emanations
from penumbras" around stated rights) or have done serious
violence to the meaning of the Constitution through reinterpreting
what its words mean--words like "taking" in the 5th
Amendment, "commerce" in Article 1, Section 8, and
even "no" and "not" in the Bill of Rights.
But those are the precedents liberals are most determined to
issue to opponents of conservative judges appears to be preserving
the dominant pattern of Supreme Court activity
we have seen since the 1930s. Liberal courts create new rights,
expanding government powers or eroding freedoms from government
control, then conservative courts, out of deference to those "new
and improved" precedents, leave them in place. They often
even build further precedents upon them, rather than rolling
Of course, if the Supreme Court is to defer to earlier precedents,
there is no respectable defense for those activist rulings (such
as from the New Deal and Warren courts) liberals are now so desperate
to defend, since they clearly deviated from Constitutional precedent.
do not advocate overturning precedents that protect citizens
from government abuse, which
was the primary purpose of the Constitution. That is the essence
of what they are trying to conserve. But to do so requires overturning
laws and precedents blatantly inconsistent with it, to reinstate
those rights and protections that have been eroded since it was
written. If that is considered a valid criticism of potential
judges, and important enough to trigger unprecedented attempts
to stop such nominations, Americans might as well admit that
much of the Constitution is already a dead letter, and the highest
law of the land has become nothing more than whatever the latest
court to rule decides it is. tOR
2004 Gary M. Galles