Sunday, July 10, 2005

Would you like rights with that original intent?

As we do often -- but not often enough -- Tamara, the kids and I hooked up yesterday for a picnic with The Sloan Ranger and his daughter. These picnics feature kids at play and adults at political discussion. The obvious subject was the Supreme Court, given Sandra Day O'Connor's announced retirement and the distinct possibility that Rehnquist and Stevens will be packing it in soon as well.

Lloyd (whose radio program I highly recommend, by the way) had a rather mischievous idea which I found delightful but unlikely (as did he): That George W. Bush might, or ought to, nominate ... drum roll, please ... Robert Bork. If there's going to be a fight (and there is), why not take it all the way?

I'd like to see that, just because I like a good brawl. What I wouldn't like to see is Bork on the Supreme Court. While some may find this surprising, I believe that there's ample evidence in Bork's well-written explication of his views on jurisprudence, The Tempting of America, that he's got it all wrong.

Bork generally counsels judicial restraint. Sounds reasonable.

Bork also supports the notion that judges should adhere, as best they understand it, to the "original intent" of the laws they are called upon to interpret. I agree with that, too.

What I disagree with is Bork's notion of precisely what the original intent of the framers of the Constitution was.

Writes Bork:

In his 1905 Lochner opinion, Justice Peckham, defending liberty from what he conceived to be "a mere meddlesome interference," asked rhetorically, "[A]re we all ... at the mercy of legislative majorities?" The correct answer, where the Constitution is silent, must be "yes." Being "at the mercy of legislative majorities" is merely another way of describing the basic American plan: representative democracy. We may all deplore its results from time to time, but that does not empower judges to set them aside; the Constitution allows only voters to do that.

Thus does Bork reject a libertarian -- and historically accurate -- interpretation of the Constitution, grounded in the framers' clearly expressed original intent.

The best explanation of the original intent in question comes, oddly enough, from an opponent of the Bill of Rights, Alexander Hamilton. In the 84th Federalist Paper, Hamilton marshals the following argument:

[B]ills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

In other words, the framers intended for Congress to be prohibited from any activity not explicitly enumerated among its powers in the Constitution. A true advocate of original intent would have to answer Justice Peckham's question "no -- regardless of the will of the voters (unless that will is expressed through the provisions for amending the Constitution), if the Constitution doesn't say the government can do it, the government can't do it."

This might put a bit of a cramp in the ol' "judicial restraint" muscle (something Damon Root of Reason doesn't seem to have a problem with), but it's the only plausible understanding of original intent. Reliance on original intent must have an underlying foundation of understanding what that intent was ... and Bork has it ass-backwards.

Of course, it is exceedingly unlikely that we'll see Bork running the Senate gauntlet again ... but his post-nomination writings should serve as a warning that "original intent" on the ingredient list may not accurately describe what's actually inside the wrapper.

Meanwhile, here's my own dark horse pick for the Court: John Danforth. If I'm wrong -- and I probably am -- well, it's happened before. If I'm right, you read it here first (unless you saw it in one of my recent comments at Questions and Observations). A Danforth nomination would be among the easiest possible slides through the Senate intestine. But, as Lloyd points out, if Bush nominates a justice who isn't regarded as likely to help overturn Roe v. Wade (I don't think that Danforth would do so), he may finally unleash open revolt in his own party. Which is fine. GOP Delenda Est and all that.

I guess we'll see.

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