The Left Replaces Rule of Law with Rule of Politics
By Stephen M. Krason
A review in Washington Lawyer magazine of U.S. Supreme Court justice Stephen Breyer’s recent book, The Court and the World: American Law and the New Global Realities declared that he “makes a ringing defense of the rule of law.” That was a curious conclusion, in light of how Breyer—one of the most preeminent leftists in the American legal profession—treats the law himself and how other prominent, powerful leftist legal figures have been acting recently.
Breyer has perhaps been the Supreme Court’s leading opponent of “originalism”—the view that the Court should interpret constitutional provisions based on what the Founding Fathers meant by them—and promoter of the notion of a “Living Constitution,” which holds that it has a dynamic meaning and so the views of contemporary society should be turned to in interpreting it. What this has meant, in practice, is that American constitutional law has been shaped to conform to a leftist or “progressive liberal” worldview. So, we have a solid bloc on the Court, appointed by Presidents Clinton and Obama and anchored by Breyer, that reliably votes together on questions coming before the Court that are important to the left. They look less like judges solidly anchored in the law and rendering sober-minded legal analysis than a political faction. While the influence of political perspectives is nothing new on the Court, there seems to be less pretense now than ever about even providing a good constitutional justification for leftist-tilting decisions.
So, the Court suddenly claims that same-sex “marriage” is an equal protection right, as if anyone could have found a fragment of justification for such a bizarre notion in any historical understanding of the clause, the constitutional document, or our constitutional tradition. A generation ago, when the Court set itself on the course of providing constitutional justification for sexual liberation (adapting to the “imperatives” of contemporary society), it invoked an open-ended notion of privacy to make abortion a right. This was in spite of the facts that the Fourteenth Amendment, which the Court invoked, was adopted at a time when states increasingly were enacting strict anti-abortion laws and our common law background, as explained by the revered William Blackstone, held that the unborn child had a right to life that was part of a more basic right of personal security.
What stood behind Blackstone’s thinking—and behind the American constitutional tradition, as explained by probably the greatest constitutional scholar of the first-half of the twentieth century Edward S. Corwin—was the natural law. One can readily accept a sensible adaptation of law, even some of our constitutional law, to truly changing circumstances. After all, the genius of the common law was being able to accommodate changing social conditions; it was change within the context of upholding perennial realities and truths. The “Living Constitution,” on the contrary, is an exercise in legal positivism.
Breyer has perhaps been the Supreme Court’s leading opponent of “originalism”—the view that the Court should interpret constitutional provisions based on what the Founding Fathers meant by them—and promoter of the notion of a “Living Constitution,” which holds that it has a dynamic meaning and so the views of contemporary society should be turned to in interpreting it. What this has meant, in practice, is that American constitutional law has been shaped to conform to a leftist or “progressive liberal” worldview. So, we have a solid bloc on the Court, appointed by Presidents Clinton and Obama and anchored by Breyer, that reliably votes together on questions coming before the Court that are important to the left. They look less like judges solidly anchored in the law and rendering sober-minded legal analysis than a political faction. While the influence of political perspectives is nothing new on the Court, there seems to be less pretense now than ever about even providing a good constitutional justification for leftist-tilting decisions.
So, the Court suddenly claims that same-sex “marriage” is an equal protection right, as if anyone could have found a fragment of justification for such a bizarre notion in any historical understanding of the clause, the constitutional document, or our constitutional tradition. A generation ago, when the Court set itself on the course of providing constitutional justification for sexual liberation (adapting to the “imperatives” of contemporary society), it invoked an open-ended notion of privacy to make abortion a right. This was in spite of the facts that the Fourteenth Amendment, which the Court invoked, was adopted at a time when states increasingly were enacting strict anti-abortion laws and our common law background, as explained by the revered William Blackstone, held that the unborn child had a right to life that was part of a more basic right of personal security.
What stood behind Blackstone’s thinking—and behind the American constitutional tradition, as explained by probably the greatest constitutional scholar of the first-half of the twentieth century Edward S. Corwin—was the natural law. One can readily accept a sensible adaptation of law, even some of our constitutional law, to truly changing circumstances. After all, the genius of the common law was being able to accommodate changing social conditions; it was change within the context of upholding perennial realities and truths. The “Living Constitution,” on the contrary, is an exercise in legal positivism.
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