Metaphorical Jurisprudence

August 24, 2004

Every morning, with the aid of strong coffee, I struggle to follow the reasoning of the New York Times op-ed page.

Read Joe's columns the day he writes them.

It isn’t easy. At times I think I’m reading excerpts from 1984, 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?

[Breaker quote: The shoe on the other foot, as it were]

[Breaker quote: The shoe on the other foot, as it were]

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.

Joseph Sobran

Copyright © 2004 by the Griffin Internet Syndicate,
a division of Griffin Communications
This column may not be reprinted in print or
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