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Sunday, January 16, 2011

Take this Constitution from my cold dead hands

From the perspective of The Left, the virulent hatred of Obama and so- called Obamaism and ObamaCare is puzzling.

He and they seem so moderate, so centrist, so tame. What are the lions of The Right getting so worked up about? Is it Gays in the military (which was delayed until a consensus of military brass including Defense Secretary Gates approved)? The threat (unfulfilled) to close Guantanamo? The continuation of the wars in Iraq and Afghanistan?

Okay, he is a Black Man. But not exactly a Jesse Jackson. His wife and children are also black, but they seem more into fashion, vegetables, and puppies than radical politics. Compare Michelle to Hilary.

Which of his policies are Marxist? Bailing out banks, General Motors, homeowners? Giving insurance companies an enormous pool of additional customers? What’s so revolutionary, so dangerous to right wing values in all of that?

The New Yorker this week contains a piece that made me nod in recognition and say, “Oh, now I get it.”

Jill Lepore, in “The Commandments ... The Constitution and its worshippers”, was about the analogy between constitutional originalism and biblical fundamentalism.

The common article of faith in the two belief systems is that change is bad. The authors of both documents are viewed as infallible and their products immutable.

So, when some of us got all gooey eyed hearing the ringing words about time for change we can believe in, many others were terrified to the point of rage by the same words and images.

To those of us who have been appellate court opinion watchers all of our professional lives, the originalist issue is ludicrous, some new clothes for an old emperor.

Back in the golden (or dark - depending on your perspective) age of the 60's and early 70's, the Warren court (and later, even the more timid Burger court) issued a series of opinions that marked serious change in constitutional interpretation. They struck down a hundred years of segregation, defined an array of rights for the accused, ended school prayer, recognized abortion rights and womens’ right to equality.

The backlash was immediate and vicious. The Right, from “The Minutemen” to “The John Birch Society” to William Buckley and Barry Goldwater and Ronald Reagan, ranted about liberal judges who were twisting the constitution to fit their own agenda. Legal scholars then molded this complaint into the originalist doctrine — no interpretation, just reading.

Liberal judges were accused of being result oriented which is a judicial sin. Judges are supposed to be philosophically neutral, objective, letting the chips fall where they may, even if they personally disagree with the result. The Law is the thing.

Over the next thirty years, Nixons, Reagans, Bushes, (and in California, a succession of similar governors) have appointed so-called conservative judges.

In this sense, conservative is a term of art, intended to be literal — their philosophy was to conserve the Constitution, based on the original intent of the founders.

Amazingly enough, this supposed insistence on strict interpretation and asserted revulsion against judges making law has led to results that conform to the political philosophies of the judges and those who appointed them.

The conservative judges proved to be just as result oriented as their liberal predecessors. In the last term the U.S. Supreme Court ruled struck down campaign contribution limits on corporations on First Amendment grounds --- although the Bill of Rights clearly was intended by and understood by the framers to apply to "The People", not businesses. The court also declared D.C.'s gun control law violated the Second Amendment, despite clear language and 250 years of precedent that its purpose was to insure "A well regulated militia ...." 

In law school I was taught that legal opinions were supposed to begin with the facts, proceed to defining the issues, and then an analysis of the law and precedents, followed by a ruling and explanation of the reasoning.  A corollary was that if the reasoning did not support the ruling, then judicial integrity required abandonment or modification of the ruling.  

Intellectually dishonest judges begin opinions with the ruling they wish to make. They relate the facts that support it and ignore or rationalize away those that diminish their view. The issues are defined in ways that insure the preferred result.  The reasoning consists of little more than rationalization, distinguishing opposing precedent without convincing analysis.

In a real sense, originalists are fundamentalists whose faith bars belief in evolution, whether as a science explaining the nature of the world, or as a metaphor for social progress ... that is, change. Their religion will not permit this.

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