The Constitution and Common Sense
We are being assured that Judge Samuel Alito, like John Roberts, and in contrast to poor Harriet Miers, is superbly qualified for the U.S. Supreme Court. He sounds good to me, but I wonder. Specifically, I wonder what qualified means.
The people who insisted that Miers didnt measure up almost made me wonder what up means. Interpreting the U.S. Constitution shouldnt be all that difficult. Its written in plain English for ordinarily intelligent people. The only hard part is ridding your mind of all the false interpretations that have confused people about it.
If you search it for something about the separation of church and state, freedom of expression, the right to privacy, or even democracy, you may be surprised to find it isnt there. Weve been told so often that all these things are there somewhere that its hard to shake the idea they are what it actually says and means. The real trick is to stop reading things into it.
Being a Supreme Court justice shouldnt require much intelligence. And it obviously doesnt, or how could undistinguished people like Sandra Day OConnor, Anthony Kennedy, and David Souter hold their own on the Court? They are praised because liberals like the way they vote, not for any special legal insight they possess.
If anything, the Court is notable for the number of its members who have been short on common sense. Kennedy is best known for his silly opinion that defining the universe is a constitutional right, and that somehow this right is umbilically related to the right to kill unborn children.
What we really need are justices who can refrain from reading their pet notions into the Constitution. It may seem that this isnt asking much, but the Court has a considerable legacy of nonsense uttered by men who have supposed that judicial robes confer philosophical profundity. The late William Brennan, for example, called the Constitution a sublime oration on the dignity of man. Oration? Sublime? Dignity? Where on earth did this embarrassingly orotund rhetoric come from?
Justice Stephen Breyer, one of the Courts leading liberals today, avoids the absurdities of Kennedy and Brennan. Nor does he repeat the cliché that the Constitution is a living document, which always turns out to mean that it can be virtually amended by the judiciary, without the forms of amendment prescribed in the text itself.
Breyer is the subject of a flattering profile by Jeffrey Toobin of The New Yorker. Breyer sounds like a pleasant, reasonable man, and Toobin stresses that he believes the Court should respect the will of the legislative branch, overturning acts of Congress as seldom as possible. In contrast to Antonin Scalia and Clarence Thomas, Toobin observes, he doesnt seek the original intent of the Framers of the Constitution.
The message Im trying to provide, Breyer says, is that there is more to the Constitution than a Fourth of July speech. It was a serious objective of the framers that people participate in the political process. If people dont participate, the country cant work.
But the Constitution says nothing about participating in the political process. These are buzzwords of our own time, never used by the Framers. If popular participation is the whole idea, where does that leave the elitist practice of judicial review?
And by the way, in ascribing this objective to the Framers, isnt Breyer just giving his own version of their original intent? How does he know what their intent was, apart from the words they used?
Agreed, the Constitution isnt a Fourth of July speech. Lets just stick to what it actually says. That wont answer every question, but it will take us pretty far, and it may save us from the temptation to answer questions that havent been asked.
Unfortunately, common sense isnt a subject taught in the law schools, not even our most prestigious law schools. On the contrary, the more clever the lawyer, the more he may delight in reaching excessively clever or counterintuitive conclusions, such as that the Constitution protects abortionists.
Lets not pretend that reading the Constitution is harder than it really is. The Framers original intent is clear enough, because its expressed in the words they agreed on, not in musty archives or arcane theories. Most of the problems arise only when lawyers try to substitute modern words for those of the text. The chief qualification for a justice should be good sense.
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