"The Democrats will pull out all stops in an attempt to defeat this nomination. Ultimately, they will lose the battle. Conservatives who are now happy that President Bush did not squander his opportunity regarding this nomination, must now be careful not to squander their opportunity of having the “mother of all” debates.What do you think? Are we going to have a debate about whether the Supreme Court should see the Constitution as an effective and significant constraint to national government power? I suspect we will not. Unfortunately, the political issue for debate seems to have been framed as: Should judges legislate from the bench? I think this question is easy to answer in principle: No.
The essence of the debate we are about to have is:
* Do we want the Federal Government to be bound by, and pay attention to, the Constitution?
*
Or, do we want our Federal Government to be able to disregard the Constitution when the expedience of the moment provides them with cover?
Liberals, most Democrats and far too many career Republicans do not want the debate framed so that it focuses on the Constitution. They want the debate to be about the man and whether he should have a seat on the Supreme Court. At the end of the day, the most likely scenario will be that conservatives win the seat, but miss the opportunity to move the nation back towards the original intent of the Constitution."
I would hope we would discuss whether the Court should see the Constitution as evolving as Justices come and go, and as their views of evolving culture change, or whether the Court should see the Constitution as evolving through the formal ratification process. The first view seems to see the Constitution "living," and instead of seeing the Court's role as constraining government, it seems to see its role as finding a way for the Constitution to facilitate government's efforts. The second view seems to see the Constitution as limiting government's power and efforts, and it relies on WE THE PEOPLE to facilitate changes in government through the formal process by which the Constitution allows amendments.
I like the second view, and I think our country would benefit from a vigorous public discussion of these two views. Do you agree?
2 comments:
Lord Acton of England, who once said, “Power corrupts, and absolute power corrupts absolutely,” would say of the Constitution, “They had solved with astonishing ease and unduplicated success two problems which had heretofore baffled the capacity of the most enlightened nations. They had contrived a system of federal government which prodigiously increased national power and yet respected local liberties and authorities, and they had founded it on a principle of equality without surrendering the securities of property or freedom.”
It is important to remember that the Constitution was written by men who did not trust government. The British Monarchy trampled upon the rights of American Colonists and this was still fresh in the memories of the Framers. When the Framers drafted the Constitution, it was written with the pre-eminence of the individual to be firmly established and given such a priority.
I would add that Madison, in Federalist #10, made it clear that not only did he not trust a monarch, but he did not trust government by majority in general as well. Madison wrote of abuses by state governments that were the result of abuses that could be fairly described as tyranny of the majority. In order to have government and a broad realm of individual liberty, Madison saw that a consitutional republic, well designed, was likely the best approach.
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