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Living in post-constitutional America

By W. James Antle III
web posted October 27, 2003

Last week we were again reminded that Americans are living in a post-constitutional era. The doctrine of enumerated powers, which holds that the federal government is limited to those functions delegated by the American people through the Constitution, has been discarded and relegated to the outer fringes of our nation's political dialogue. The challenge for con-cons (constitutional conservatives) is how to confront and correct this radically reshaped regime.

Janice Brown

The first reminder came on the occasion of California State Supreme Court Justice Janice Rogers Brown's nomination to a federal judgeship on the Circuit Court of Appeals in Washington, D.C. Sen. Charles Schumer (D-NY) has already announced his intention to resort to a filibuster to prevent her nomination from being approved by the full Senate. Her offense? Believing that judges should subordinate their political and social agendas to their duty to neutrally apply the written law. She categorically rejects the idea that judges should act, in her words, as "philosopher kings." "The quixotic desire to do good, be universally fair and make everybody happy is understandable," she wrote in one of her dissenting opinions. "There is only one problem with this approach. We are a court."

While Justice Brown's views are consistent with the Founding Fathers' intended role for the judiciary, they are at odds with the goals of the many liberal advocacy groups arrayed against her. The reaction to her nomination from these groups and the senators who carry their water brings to mind another Brown quote: "The preservation of a viable constitutional government is not a task for wimps." This is especially true in a climate that regards this very task, once universally held to be the central duty of all public officials, as an illegitimate manifestation of political extremism.

Scholar and author Thomas Sowell, who has written a three-part defense of Brown in his nationally syndicated column, understands why judges committed to the Constitution and the rule of law pose such a threat to defenders of our post-constitutional order, particularly on the left: "Much of the liberal agenda can only be imposed by judges because elected officials cannot keep bucking public opinion. A judge who opposes judicial policy-making is a serious danger to their agenda and they will try to stop such nominees at all costs."

Even if it means concentrating on a nominee's speeches rather than her actual casework as a judge. Democrats on the Senate Judiciary Committee grilled Brown on an April 2000 speech to the Federalist Society in which he said "where government moves in, community retreats, civil society disintegrates and ability to control our own destiny atrophies," resulting in "a debased, debauched culture which finds moral depravity entertaining and virtue contemptible." Sen. Dianne Feinstein (D-CA) incredulously asked, "You really believe that?" But aren't the things Brown noted in her remarks exactly what we have observed with the welfare state, particularly the aspects that even many liberals realized not so long ago cried out for reform?

Nevertheless, this has led some to brand Brown an anti-government ideologue, including one of her erstwhile supporters. The Sacramento Bee reported that University of California at Berkley constitutional law professor Stephen Barnett recanted his endorsement of Brown's nomination. He had been one of 16 California law professors to sign a letter backing her for the judgeship and praising her integrity, but later decided her speeches (as opposed to her actual work on the court) reflected "extreme and outdated ideological positions" that place her "outside the mainstream of constitutional law." This is despite the fact that the Founding Fathers were known for their deep skepticism toward centralized government power.

We have reached the point where those who wish to faithfully apply the Constitution as written and accept its limitations on federal power are considered "outside the mainstream of constitutional law," and that those who agree with the Framers' beliefs about the role of government are summarily disqualified from federal judgeships. Janice Brown finds herself in the same position as Charles Pickering, Bill Pryor and Miguel Estrada.

Taking the Constitution seriously is not just a liability in the judiciary; it poses problems in the political realm as well. In the same week the Senate was locked in a partisan battle over Justice Brown, it passed a federal ban on partial-birth abortions by a vote of 64 to 34 so it could be sent to President Bush to be signed. While it is gratifying to see politicians defend life by such a lopsided margin, even if only in particularly outrageous cases where the partial delivery of the fetus produces an act that pretty unmistakably resembles infanticide, this ban can't make sincere constitutionalists feel anything but conflicted.

Under the Framers' Constitution, Congress only may only legislate in enumerated areas. The Tenth Amendment leaves all other areas to the states and the people. Homicides, for example, are prosecuted at the state level. Since abortion, partial-birth or otherwise, is not mentioned in the Constitution – either as a right or an area subject to congressional regulation – it would seem that the any such legislation would properly be in the states' domain, which is precisely where abortion policy was set for most of U.S. history.

That is, until Roe v. Wade nationalized the issue by sweeping aside all existing state laws on abortion in 1973. The problem with this ruling is that it is, in the words of John Hart Ely, "not constitutional law and gives almost no sense of an obligation to try to be." Those who oppose Roe as unconstitutional but also object to the policy it imposed are placed at a competitive disadvantage in the political arena. One side of the debate is willing to impose its will regardless of what the Constitution says, and it has the bulk of the legal establishment and countless credentialed experts in constitutional law to back it up. The other side can either follow the Constitution and be disenfranchised or face political reality and battle on their opponents' unconstitutional terms.

Rep. Ron Paul (R-Tex)

Rep. Ron Paul (R-Tex) referred to this to this tension when he talked about his vote for the partial-birth abortion ban and other issues in an interview with The Hill earlier this year: "If there's any vote I've ever cast that might be technically on the fringe [of constitutionalism], that would be that one. The justification in my mind is one; it's about the most horrible act that one can conceive of … as well as the fact that the law was nationalized by the courts in Roe v. Wade." Taking natural law into account, I agree with Paul's position on this constitutionally problematic piece of legislation. But it highlights the difficulty of being a constitutionalist in a political order that has fundamentally rejected the idea that the Constitution limits the scope of federal decision-making authority in any substantive way.

Of course, we pretend America is the constitutional republic it always was. But we are living under a Constitution that would not be recognizable to those who wrote it. Rather than understanding the value of decentralizing, limiting and enumerating power for its own sake, our contemporary lawgivers have come to regard the Constitution as an imperfect statement of liberal ideology to be "improved" upon by each successive generation. But this robs the constitutional text of any fixed meaning other than that which the various branches of the central government choose to suffuse it with, defeating the entire purpose of constitutional government in the process.

Like something out of Orwell's 1984, those who distort the Constitution to suit their own social agendas are said to be its defenders while those who would restore it are it are dismissed as out-of-the-mainstream extremists. Those I call "con-cons" have a long way to go toward getting the old constitutional republic back, but perhaps a good place to start would be to understand how completely we've lost it.

W. James Antle III is a senior editor for Enter Stage Right.

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