January 2006
                        (page 1)

The Living Document, RIP
by Joe Sobran

     Both John Roberts and Samuel Alito survived their 
confirmation hearings, winning praise for their poise and 
legal acumen, as well as rueful respect for their deft 
sidestepping of the Big Issue: Roe v. Wade. Liberals 
grumbled that they were "extreme" and "outside the 
mainstream" for having expressed doubts, at various times 
in the past, about Roe and other sacred liberal 
precedents, such as those requiring reapportionment of 
state legislatures under the Fourteenth Amendment.

     Amusingly enough, it was Justice William O. Douglas, 
the liberals' liberal, who observed, "No patent medicine 
was ever put to wider and more varied use than the 
Fourteenth Amendment." Truer words were never spoken -- 
certainly not by Douglas, anyway. Nearly every judicial 
ruling liberals like to call "historic" has relied on 
this badly worded and illegally ratified excrescence on 
the Constitution. It can be twisted to mean nearly 
anything, and has been.

     But the very word "historic" suggests the truth: 
that all these bold rulings were controversial in their 
day, which is to say, outside the mainstream. When they 
were handed down, there were certainly two sides to many 
issues, with liberal justices audaciously taking the 
novel side (and even they were far from unanimous in many 
cases). Once that was done, however, it appears that the 
traditional views thus overturned became taboo, and it 
was the part of conservatives to conserve the liberals' 
gains. The old mainstream was dead; long live the new 

     Henceforth liberals would add a new wrinkle to their 
rhetorical zeal for dissent and independent thinking. 
When practiced by their opponents, these admirable things 
abruptly became vices and acquired pejorative names like 
"extremism." Hence the rejection of Robert Bork, who had 
indiscreetly criticized the flimsy reasonings and rulings 
of both the Warren and Burger courts; hence the pressure 
on subsequent Republican nominees to swear fealty to 
those things Bork had so rudely profaned.

     A liberal is one who can be open-minded about 
anything except the past; about that he is strictly a 
bigot. He divides the past into two broad categories, the 
"progressive" and the "reactionary," and once a thing has 
been placed in the latter column (also called 
"Neanderthal" or "medieval"), it never gets another 
chance. From then on it's "Roma locuta, causa finita," as 
it were. The Deposit of Faith has been infallibly 
defined. Or, in the terse formula of the Brezhnev 
Doctrine, "What we have, we keep." So much for the Living 

     Happily, a new era is upon us, liberals have lost 
their long monopoly of power, and so this great rule of 
liberalism is becoming unenforceable. Roberts and Alito 
prudently tiptoed past some touchy questions, with 
respectful nods to stare decisis, and lo! The U.S. 
Supreme Court, though it still leaves much to be desired, 
now has four justices who are willing to view the past 
with open minds. At this point, that's about as much as 
any reasonable reactionary can hope for.


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