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Gary M. Galles - Contributor

Mr. Galles is a professor of economics at Pepperdine University. [go to Galles index]


Rejecting 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?

A Los Angeles Times editorial against one of Bush's first-term nominations may 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 stop.

Conservative 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.

The difficulty is that such an approach threatens precedents that created new 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 retain.

The biggest 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 them back.

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.

"Conservative" judges 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

copyright 2004 Gary M. Galles




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