Alito Nomination an Outstanding Choice

This morning, President Bush nominated Judge Samuel Alito to the Supreme Court. Alito, who has been a judge of the 3rd circuit Court of Appeals for the last 15 years, has been praised by legal scholars for his superior intellect and conservatives for his originalist interpretation of the Constitution. Alito is already drawing stiff criticism & opposition from leading liberal Democrats, a sure sign the President's new nominee is a great pick.

With this nomination, our country now has an opportunity to have a great debate between the two major schools of thought regarding judicial philosophy. Over the last several decades, the Supreme Court has practiced a brand of unbridled judicial activism that has stood the Constitution on its head, invented new constitutional "rights" from whole cloth, and eviscerated clearly established points in the Constitution like the protection of private property from eminent domain abuses. We now will have a debate over whether the Constitution means what it says and what it originally meant unless amended under Article V or whether we have, as the liberal judicial activists claim, a "living, breathing Constitution" whose meaning changes with the times, public opinion, and--now--global opinion and foreign law.

The courts are the last beachhead of liberalism in American government. Having failed to win at the ballot box and in most legislative chambers, liberals have long sought to impose their policy preferences on this country through creative reinterpretations of the Constitution. While abortion is often cited as the paramount issue in the Supreme Court fight, other issues are also just as important. This fight over the court is not a political fight over a policy issue or two. It is about an entire philosophy regarding the relationship between the government and the governed.

Under the rule of law and our constitutional system of government, there are three branches of government: legislative, executive, and judicial. Each branch has specific powers and responsibilities and ought not encroach upon those of either other branch. All people--from the weakest tot he most powerful--are or should be subject to governance by the rule of law. Under the rule of law, a legislature makes the law, the executive enforces the law, and the judiciary interprets & applies the law in specific cases and controversies. Freedom as it is known in this country and has been expounded by the influential political philosophers in our history cannot exist if people are governed by the arbitrary rule of man and not the rule of law.

The supreme law of the land is the Constitution of the United States. Federal laws, treaties, and state constitutions and laws are all subordinate to it. State laws are also subordinate to state constitutions. The U.S. Constitution and every state constitution have amendment processes specifically detailing the manner of amending the fundamental laws of the country and the various states.

Our Constitution was quite imperfect, yet the Founders designed an amendment process that, although difficult, has permitted the Constitution and our Republic to survive as the longest-lived republic surviving today. By attaining a 2/3 vote of both houses of Congress and the legislatures of 3/4 of the states, we adopted the Bill of Rights. By this process (and tremendous bloodshed), we abolished slavery, made former slaves a whole person under the law, and--although the required implementing laws took nearly a century too long to enact--ended legalized (and in many cases mandated) racial discrimination. By this process, we extended the franchise to former slaves (again, despite the required implementing law taking nearly a century too long to enact), women, and young adults (age 18-20). By this process, we limited presidents to two terms in office and established a process for replacing an incapacitated President and filling vacancies in the vice presidency.

As I write this, I am listening to Dave Peyton, the lovable leftist, bemoaning the Alito nomination and talking about "radical right-wingers" and the agenda he sees us as having for this country. There is a difference between a policy preference and an interpretation of the Constitution.

For example, on abortion, I think Roe v. Wade was bad law and that abortion is wrong and--except in cases of rape, incest, or to save the mother's life--should be regarded in the law as murder on the part of the abortionist (no penalty for a woman seeking or obtaining an abortion). Many disagree with some or all of these positions, but any honest analyst would acknowledge as do I that a vacancy of the Roe precedent would merely return the issue to state legislatures. For many years, the response to Roe v. Wade was to campaign for a constitutional amendment prohibiting abortion nationwide; this approach, despite its nominal inclusion in the national GOP platform, has long been abandoned as a serious remedy for this miscarriage of justice in recognition of the absolute impossibility of ever enacting such an amendment. This unsettles many of us who are pro-life in both personal belief and public policy position, but it's far less troubling than the imposition of this policy by judicial fiat.

For the voluminous comments--for a blog--I have for abortion, that is not the only issue about which I have great feelings. There are many, many other areas where our Constitution has been stood on its head. The Takings Clause has been ignored in favor of allowing governments to force us to sell our property to someone else when that government thinks the other person would put the property to what it sees as a better use. The Commerce Clause has been stretched to be an all-inclusive mode of injecting federal regulation into virtually every aspect of our daily lives. Within the next few years, the Court will decide whether the Equal protection Clause's interpretation should extend to sexual preference and whether same-sex marriage should be mandated via the Full Faith & Credit Clause and same-sex marriages in Massachusetts--which, of course, were imposed by the MA Supreme Court under their state constitution that was written in 1780 without any democratic process.

So, let's have the debate and let us resolve to have a recurrence to our fundamental principles, interpret the Constitution according to its original intent, and leave policymaking to the democratic branches of government and--in many more cases--to the states or the people directly.