How We're Killing Our "Living Constitution" - 5/8/2009

It is clear to me that we need to reset some of the Supreme Court rulings on the Constitution, such as interstate commerce means whatever you want it to mean. In the process we need to ignore the rants and ravings of the liberal press, like Obama, Reid and Pelosi have been ignoring us since Obama "took" office.

Bruce

By THOMAS SOWELL | Posted May 08, 2009

While President Barack Obama has, in one sense, tipped his hand by saying he wants judges with "empathy" for certain groups, he has in a more fundamental sense concealed the real goal:

Getting judges who will ratify an expanding scope of the power of the federal government and a declining restraint by the U.S. Constitution.

This is consistent with everything else Obama has done in office and is consistent with his decades-long record of alliances with people who reject American society's fundamentals.

Judicial expansion of federal power is not really new, even if the audacity with which that goal is being pursued may be unique. For more than a century, believers in bigger government have also been believers in having judges interpret the restraints of the Constitution out of existence.

They called this "a living Constitution." It has in fact been a dying Constitution, as its restraining provisions have been "interpreted" to mean less and less so that the federal government can do more and more.

For example, the Constitution lets private property be taken for "public use" — perhaps building a reservoir or a highway — if "just compensation" is paid. That power was expanded by the Supreme Court in 2005 when it "interpreted" this to mean that private property could be taken for a "public purpose," which could include almost anything for which politicians could come up with the right rhetoric.

As for "just compensation," that is often about as just as "separate but equal" was equal.

As for "empathy" for the less fortunate, it is precisely lower income and minority neighborhoods that are disproportionately bulldozed to make way for upscale shopping and entertainment centers that will bring in more taxes for politicians to spend to get themselves re-elected.

This process of "interpreting" the Constitution (or legislation) to mean pretty much whatever you want it to mean, no matter how plainly the words say something else, has been called judicial activism.

As a result of widespread objections to this, that problem has been solved by redefining "judicial activism" to mean something different.

By the new definition, a judge who declares legislation that exceeds the authority of the legislature unconstitutional is called a "judicial activist."

The verbal virtuosity is breathtaking. With just a new meaning to an old phrase, reality is turned upside down. Those who oppose letting government actions exceed the bounds of the Constitution — justices like Antonin Scalia and Clarence Thomas — are now called "judicial activists." It is a verbal coup.

Politicians such as Sen. Patrick Leahy and law professors such as Cass Sunstein and many in the media measure how much of a judicial activist a judge is by how many laws that judge has declared unconstitutional. Sunstein, incidentally, is among those being mentioned as a nominee for a post on the Supreme Court.

When the Supreme Court in 1995 declared that carrying a gun near a school was not "interstate commerce," there was consternation and outrage in the liberal press because previous decisions of the Supreme Court in years past had allowed Congress to legislate on virtually anything it wanted to by saying it was exercising its authority to regulate interstate commerce.

When the Supreme Court decided by a 5-4 vote that carrying a gun near a school was not interstate commerce, it was saying something that most people would consider too obvious for words.

But it was considered outrageous that the Supreme Court recognized the obvious and refused to rubberstamp the sophistry that let Congress pass laws dealing with things that the Constitution never authorized it to deal with.

Incidentally, carrying a gun near a school was something that states had the authority to deal with, and most states had already banned it.

What is at stake in Supreme Court nominations is the power of the federal government.

"Empathy" is just camouflage, a soothing word for those who do not look beyond nice-sounding rhetoric.