Supremely Elusive Justice

David Begelman 

I fear that responding to William T. Barrante’s latest comments may task an already bemused readership sensing that exchanges between us are fast becoming tiresome or even a comedy routine with no end in sight.

Where to begin? Mr. Barrante takes me to be launching, mirabile dictu, an “attack on the Second Amendment.” Preposterous. I only wished to point out that striking down laws permitting ownership of anything but a flintlock rifle might be a permissible interpretation of the Second Amendment should departure from the actual intentions of the framers become the measure of “judicial activism.” The approach, called “intentionalism” by some legal scholars, has little to recommend it, if we view the Constitution as a document applicable to modern problems. This should be a reminder to those who have meltdowns over “activism” just because court decisions deviate from the so-called “intent” of the Founding Fathers. Chief Justice Rehnquist seemed to harbor some such standard when faulting Thomas Jefferson for the latter’s stand on church-state separation. Rehnquist complained that Jefferson was in France when the Constitution was ratified, so he could not render an authoritative opinion in absentia. Evidently, even the mind-set of a Founding Father was insufficient for Rehnquist; you had to be counted as present during ratification in order to swing any constitutional weight, to boot. (I dread to think what he would have said if one of the ratifiers, albeit a signatory, was in a colonial men’s room at roll call.)   

But now we are faced with a problem. If what the framers’ actually had in mind cannot be a viable criterion of constitutional interpretation, what should be? Obviously, it’s a set of standards or interpretive philosophy that captures constitutional meaning, while also permitting a natural evolution of interpretation suitable for addressing a bewildering variety of modern cases and instances. (Justice Antonin Scalia calls the proper judicial spin on this approach originalism, a legal philosophy based upon the abstract meaning of constitutional terms, not framers’ intentions)

The red flags are already going up, because while most legal scholars endorse some kind of evolution of constitutional interpretation, there is disagreement over how far it should go. Mr. Barrante feels it goes too far when “rights” never granted by the Constitution are read into it. My disagreement with him is not over whether, for example, abortion is or is not a “right” implied by the Constitution, or whether McCain-Feingold Campaign Finance Reform does or does not violate the First Amendment, but rather the certainty with which he proclaims his own viewpoint as the correct one. And nothing more than proclaim it he does, since he develops no arguments for his assertions. It’s as if the “activism” he deplores were so transparent, arguments are unnecessary. Transparent too, he instructs us, is the obvious loss of freedom we would experience if President Obama gets to appoint too many Supreme Court justices. One is left wondering whether Mr. Barrante gives a new meaning to being over the top—constitutionally speaking, of course.

Judge Learned Hand once famously observed that, “The spirit of liberty is the spirit which is not too sure that it is right,” an observation that is all but lost on much conservative commentary. Getting down to specifics, why is Roe v. Wade, but not Brown v. Board of Education a glaring specimen of “activism?” The former decision is presumptively based on what many deem to be a right to privacy implicit in the Fourth Amendment and such landmark decisions as Stanley v. Georgia and Griswold v. Connecticut. The latter decision, paradoxically favored by as conservative a judge as Robert Bork, honors the idea that separation of the races in schoolrooms involves inherently unequal treatment. And where is that principle found in Mr. Barrante’s version of the Constitution if the other cannot be?

Cut to the chase. Many of us just don’t like abortion, whereas most of us now favor integrated schools. So what we’re about on the legalistic level is to toss around terms like “judicial activism” so that our social ideologies dovetail neatly with the highfalutin language we recruit to dress up the shop.