METAPHORICAL JURISPRUDENCE
August 24, 2004

by Joe Sobran

     Every morning, with the aid of strong coffee, I 
struggle to follow the reasoning of the NEW YORK TIMES 
op-ed page. It isn't easy. At times I think I'm reading 
excerpts from NINETEEN EIGHTY-FOUR, or maybe FINNEGANS 
WAKE.

     The TIMES created the op-ed page around 1971, in 
response to Vice President Spiro Agnew's criticism of the 
media for presenting only liberal opinion. The idea was 
to offer greater diversity of opinion, by which the 
TIMES, it soon became clear, meant greater diversity of 
liberal opinion. So it added liberal Republican 
commentators -- "neoconservatives" -- to its stable of 
liberal Democrats.

     This month it introduces a "guest columnist" named 
Dahlia Lithwick, an old-fashioned liberal. In her debut 
appearance, she assails the idea that liberal judges are 
"activists," who keep changing the meaning of the U.S. 
Constitution, whereas conservative judges stick to 
interpreting the Constitution according to its original 
meaning.

     Not so, says Miss Lithwick. The conservative judges 
are just as willful as the liberals; if the latter are 
"activists," the former should be called "re-activists," 
because they are "trying to roll back time to the 19th 
century."

     This trite, meaningless, and exasperating metaphor 
seems to be indispensable to the liberal mind. Instead of 
debating intelligible propositions, the liberal 
dramatizes all political disputes in terms of an 
imaginary clock, which conservatives are forever trying 
to turn back, while liberals are, I suppose, trying to 
turn it ahead. It makes no sense, if you think about it, 
because a clock is supposed to be accurate, and a fast 
clock is as misleading as a slow one.

     But Miss Lithwick isn't through with the goofy 
metaphors. She admits that "there is an urgent normative 
debate underlying this issue -- over whether the 
Constitution should evolve or stay static" -- but "no one 
ought to be allowed to claim that the act of clubbing a 
live Constitution to death isn't activism."

     Confusion worse confounded! What does it mean to 
"club a live Constitution to death"? Is it, like, a baby 
seal?

     Look. A legislature can, and should, repeal a bad 
law. Presumably a court can, and should, reverse a bad 
decision. We can, and should, discuss this without 
dragging clocks and seals into it.

     Miss Lithwick not only conceives the Constitution as 
"live," but as "evolving." I sense another metaphor 
lurking here: the Constitution as an amoeba in a swamp 
that gradually, over long expanses of decades, turns into 
a dinosaur, perhaps.

     The current brawl over the Constitution centers 
around recent U.S. Supreme Court decisions, especially 
about abortion. In 1973 the Court abruptly ruled that all 
state laws against abortion are unconstitutional. It has 
never satisfactorily explained this ruling. Nobody had 
ever thought the Constitution said, meant, or implied 
this.

     Everyone understood perfectly well that the Court 
ruled as it did because its liberal majority -- the 
Trendy Old Men -- wanted abortion to be legal. The 
Constitution merely served as an excuse for imposing 
their will on the states.

     Defenders of the ruling fell back on a lousy 
metaphor: that the Constitution is a "living document" 
with no stable or inherent or even logical meaning. Yet 
somehow we are supposed to trust nine mere mortals to 
supply it with meaning, and if their meaning shocks some 
people, well, that's what living documents do.

     If conservatives object to this liberal style of 
jurisprudence as arbitrary and arrogant, Miss Lithwick 
replies that it's no less arbitrary and arrogant -- 
"activist" -- for conservative judges to oppose it.

     She's wrong, because she ignores a basic difference. 
The conservatives appeal to what everyone, until 
recently, understood the Constitution to mean. They 
aren't trying to saddle it with unheard-of meanings, as 
liberals do.

     To use another hackneyed metaphor, let's put the 
shoe on the other foot. Imagine a really "activist" 
conservative Supreme Court following the liberal pattern. 
Such a court might rule that the First Amendment not only 
permits but requires prayer in public schools; or that 
the Fifth and Fourteenth Amendments require the states to 
prohibit abortion.

     In such cases, even liberals would object that the 
Court had gotten too big for its britches. Would they be 
mollified by the argument that the Constitution is a 
"living document," full of metaphorical "penumbras" and 
"emanations," which it's the courts' role to discern for 
lesser mortals?

     Methinks not. Now that conservatives threaten to 
gain the upper hand in the judiciary, liberals are trying 
desperately to turn back the clock.

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