Obama, The Living Constitution, and the Socialization of America

Henry Mark Holzer’s thought provoking article at FrontPage Mag today  - Obama’s Supreme Court - gives us a preview of Obama’s judicial appointees’ litmus tests.  (Holzer is a libertarian Constitutional lawyer and Professor Emeritus at Brooklyn Law School)

There are some serious concerns if the fate of the federal judiciary, let alone the Supreme Court, falls into Obama’s hands (especially with a compliant Senate). Let’s take a look at the words of Obama himself:

On July 17, 2007, Obama made a speech in Washington, D.C. to the country’s leading abortion-meisters, “Planned Parenthood.” In the words of NBC reporter Carrie Dean, Obama not only “leveled harsh words at conservative Supreme Court justices,” but “he offered his own intention to appoint justices with ‘empathy’.”

There are two camps of SCOTUS critics… those that consider themselves originalists, and others who subscribe to what always seems a catch phrase, a “Living Constitution”. Holzer (and most conservatives) fall into the former.  Obama, without doubt, falls into the latter category.

In a 2007 Planned Parenthood speech, Obama proudly touted:

“We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.”

Statements like this are  a stake thru the heart of original constructionists. But I confess, I never considered, nor fully understood, the concept of a Living Constitution…or a document, which “evolves in response to social forces and political events.” (Herman Belz: A Living Constitution or Fundamental Law?)

Originalists believe that the text of the Constitution is binding on the SCOTUS. Needless to say,  believe limitations of that strict interpretation is reality, and our lives are  fraught with ugly surprises… ala   our recent Boumediene v Bush SCOTUS opinion.

Back in 2005, Jack M. Balkin (Knight Professor of Constitutional Law and the First Amendment at Yale Law School) wrote a column for Slate that really got the brain cells a’jumping. In his commentary - Alive and Kicking: Why no one truly believes in a dead Constitution - he raises the theory that all of us today are Living Constitutionalists… albeit selective in our application. While he spends a great deal of the article supporting that is, in his opinion, what the Framers intended, the more interesting part to me was how his theory is actively practiced right under our noses… and, for the most part, with our silent consent.

Many Americans fail to realize how much of our current law and institutions are inconsistent with the original expectations of the founding generation. A host of federal laws securing the environment, protecting workers and consumers—even central aspects of Social Security—go beyond the original understanding of federal power, not to mention most federal civil rights laws that protect women, racial and religious minorities, and the disabled from private discrimination.

Independent federal agencies like the Federal Reserve Board, the Federal Trade Commission, and the Federal Communications Commission would all be unconstitutional under the original understanding of the Constitution. Presidential authority would be vastly curtailed—including all the powers that the Bush administration regularly touts. Indeed, most of the Bush administration’s policy goals—from No Child Left Behind to national tort reform—would be beyond federal power.

He cites this morphed, unconscious duality of SCOTUS justices by using examples of the two most well known court originalists, Scalia and Thomas. Specifically, Scalia’s concurrence in the medical marijuana case of Raicht v Ashcroft, and Thomas’ arguments for 1st Amendment rights protections “far broader in scope than the framers would have dreamed of. “

It goes without saying that the majority of conservatives have no beefs with civil rights, or even the federal agencies that exist, which are theoretically illegal under a pure originalist view. And as a Constitutional scholar, Balkin certainly recognizes that constraining justices is integral. But he differentiates between the lower courts – constrained strictly by precedent – and the SCOTUS, whom he says is constrained and dictated to by ”professional legal culture and constitutional structure.”

And in this vein, he continues with a startling and irrefutable revelation:

Because the court is a multimember body, centrist judges in each generation, like Lewis Powell or Sandra Day O’Connor, determine the path of doctrine, especially in the most controversial areas. In addition, new Supreme Court appointments tend to respond to the vector sum of the political forces at play at the time of confirmation.
In fact, political scientists have shown repeatedly that the Supreme Court never strays too far too long from the center of the national political coalition, and when it does, new appointments tend to push it back in line.

The Supreme Court held out against Franklin Roosevelt’s New Deal for a few years but eventually gave in. The New Deal settlement, which Justice Scalia himself believes in, came from overwhelming public sentiment in the ’20s and ’30s that the Constitution had to be interpreted in light of the needs of the time; that ours was a living Constitution

snip

In the long run, the Supreme Court has helped secure greater protection for civil rights and civil liberties not because judges are smarter or nobler, but because the American people have demanded it. When social movements like the civil rights movement or the feminist movement convince the center of the country that their claims are just, the court usually comes around. Sometimes it gets ahead of the center of public opinion, and sometimes it’s a bit behind. But in the long run it reflects the national mood about the basic rights Americans believe they deserve. .

Using Balkin’s theory, we have a better understanding of just how the SCOTUS may feel comfortable, ignoring precedents and shooting from the hip on a case living in legal gray areas – i.e. Boumediene v Bush. It is the degree of acceptance of a “living Constitution” mentality and, in their eyes, society was demanding it. Mr. Balkin’s theory of a court that follows the citizenry’s political will seems to be on the money.

Which brings us back around to the FrontPage Mag article, and Holzer’s vision of the inevitable justices that would be appointed under an Obama WH, and Democrat controlled Senate.

Obama’s confession drops Brennan’s Living Constitutionalism into yet a lower rung of hell. His confession reveals that while the Brennanites fed the Living Constitution’s voracious appetite in order to achieve the amorphous goals of “social justice, brotherhood, and human dignity,” Obama will nurture the beast with what’s left of limited government and individual rights, all in the name of “empathy”—a code word for something much darker: sacrifice of constitutionalism to the needs of society’s perceived victims.

Most of us would like to believe that justice can not be affirmative action driven – that our blind lady with the scales doesn’t distinguish and rule differently between a single mother, a petitioner’s color, rich or poor, old or young, or considers their sexual preferences. Yet Obama promises us appointees who must “empathize”, and thereby interject their feelings into their decisions.

History, including as recent as the last week, has shown us that Balkin’s theory that the court follows the nation’s political trends – sooner or later - is the rule of the day. With even conservative appointees concurring with Boumediene v Bush, any litmus test based on personal conservative beliefs evidently means nothing, and the political will of the people (eventually) will mean everything.

A SCOTUS dominated by Obama “empathetic” appointees can prove dangerous. However even more dangerous is what appears to be an irreversible trend of US citizenry to the socialist left. Our dominate social attitudes confer ultimate influence on the SCOTUS to carry out Obama’s desired justice for “society’s perceived victims”.

Holzer ends his column with the burning question:

While our Nation has been able to survive Brennanism—though with the recent Guantanamo decisions, especially Boumediene v. Bush, who knows?— will it be able to survive Obama-appointed Supreme Court justices?

Yet I have to ask, can our nation survive – as we know it today - with a court that promises to increasingly rule, commensurate with the societal shift to the left?