Supreme Court controversies are all the rage right now — as well they should be.
If any more evidence were needed that the American people are fascinated with the court, a look at the newest New York Times nonfiction best-seller list proves the point: Justice Clarence Thomas’ memoir, “My Grandfather’s Son,” debuts at the very top spot, and Jeffrey Toobin’s “The Nine” is in fourth position. And “Supreme Conflict” by ABC-TV’s Jan Crawford Greenburg deservedly continues to garner rave reviews as well.
But for a purely intellectual yet highly readable delineation of what’s at stake in the nation’s appellate courts, nothing better explains the issues than the brand-new “Originalism: A Quarter Century of Debate,” edited by Federalist Society co-founder Steven Calabresi.
Calabresi ably compiles some of the era’s seminal speeches about how the Constitution should best be interpreted. Even better, Calabresi’s own comprehensive introduction crystallizes the arguments so cogently that it alone could serve as an adequate primer.
Perhaps the most important single sentence in Calabresi’s essay comes from a 1985 speech to the American Bar Association by then-Attorney General Ed Meese, who said “the Constitution is a limitation on judicial power, as well as executive and legislative power.”
Judges who interpret the Constitution remain below the Constitution, not above it. That same Constitution which supplies only an implied power for the Supreme Court to review the operations of other branches of government supplies several explicit powers to those other branches to keep the high court in line.
Calabresi approvingly cites President Ronald Reagan saying that American freedom is preserved not by the courts alone, but by “the totality of our constitutional system, with no one part getting the upper hand.”
Clearly, the Supreme Court has erred numerous times in its 218-year history. As Calabresi puts it, citing a host of horrendous decisions, “One could make a powerful case that the history of judicial review has been largely one of errors and tragedies.”
He offers plenty of theoretical grounds for why judges should not be policy-makers, then adds this highly practical explanation: “They have much less information at their disposal than do legislators because they cannot hold hearings, they cannot visit their home districts and talk to constituents, and they … live an insulated existence where they talk mainly to their law clerks and spouses, and the information they get about the real world comes mainly in the highly stylized form of a legal brief. …”
To this, and to Meese’s contentions, the late Justice William Brennan answered in a 1985 speech at Georgetown University that it is most definitely the role of Supreme Court justices to provide “ultimate resolution” for multitudinous “social, economic, philosophical, and political questions.”
Brennan said the court must decide based not on the dead letter of the law, but instead on the “transformative purpose” of a constitutional text that, despite its appearance as merely a structural “blueprint for government,” is actually meant as a “sublime oration on the dignity of man.”
Again and again (well over two dozen times), Brennan returned to this mantra that the Constitution’s prime purpose was to promote human “dignity.” Yet he never explained where he got the notion that the Constitution’s aim was “dignity” rather than creating a system of limited government. Nowhere in the Constitution’s own text does the word “dignity” appear (nor anything close to it).
Indeed, the precise words of the text, and their commonly understood meanings, were not of great importance to Brennan; what mattered, he said, were the “aspirations” somehow inherent therein.
Rejecting Brennan’s approach, conservatives such as Calabresi believe the original meanings of the words are the only valid considerations in constitutional interpretation, because the law is meant to be clear and understandable.
What Brennan never explained in his speech, and what the judicial left never has adequately explained, is how exactly a judge can provide consistent interpretations of the Constitution — much less how an ordinary citizen can fathom what the judges decide — if the Constitution is merely aspirational and its words subject to changing meanings discernible only to the judges themselves.
Answering Brennan, Calabresi writes this: “To say that the genius of a constitution lies in the fluidity of its meaning is a little bit like saying that the genius of the brakes on your car is the way they can be used for acceleration.”
Calabresi is correct, which is why this nation would be far safer without allies of Justice Brennan at the constitutional wheel.
Examiner columnist Quin Hillyer is a senior editor of The American Spectator. He can be reached at [email protected].
