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« Big Government Prevents Recovery | Main | On the Constitution »

Originalism v. Judicial Arrogance

I once heard a self-described “neo-Marxist” professor complain that Conservatives are always playing the “Hitler card.”  In every diplomatic crisis, he grumbled, Conservatives immediately frame the argument as one between the appeasers of Munich and the clear-minded Churchills.

He did have a point.  Every hostile government is not the Third Reich and every diplomat is not Chamberlain.  We Conservatives would do better to refrain from the WWII rhetoric unless the situation warrants (see, Iran).   Better we understand the basic lessons of WWII and bring out Hitler in extraordinary circumstances.

If Liberals are justified in their frustration with the “Hitler card,” Conservatives can be equally justified in their frustration with the “Brown v. Board card”—the oft-cited case Liberals use each time someone suggests justices should adhere to the Constitution rather than legislate from the bench. 

The latest case in point is Justice David Souter.  As E.J. Dionne reported last week after Souter’s Harvard commencement speech:

Souter attacked the fatal flaw of originalism -- which he relabeled the "fair reading model" -- by suggesting that it would have led the Supreme Court in 1954 not to its Brown v. Board of Education decision overturning legal segregation but to an affirmation of the 1896 Plessy v. Ferguson ruling upholding "separate but equal" public facilities.

The problem with this argument is that—just as foreign policy can’t rest on the lessons of one war—judicial philosophy can’t rest on the lessons of one case (or even multiple cases, for that matter).  What is important is that a philosophy proves in practical application to consistently produce right results.   A philosophy is a framework, not a rulebook.

Aldous Huxley once said that, “The only completely consistent people are dead.”  At the risk of being inconsistent, then, even the originalist can admit that in hindsight the Brown case was decided justly.  What the originalist cannot admit is that the Brown case somehow gives progressives cart blanche to ignore the framework on which our system was constructed and on which we have lived prosperously for over two centuries.  How arrogant the progressive Liberal who ignores the value of tradition and the wisdom of his forefathers!  These people have an astonishing disregard for the exceptional character of our country and a delusional belief in their own intellect.

Alas, there is a backlash coming against the ambush of “progressive values”—which by the way don’t reflect the values of the founders or the values of average Americans.  Elena Kagan’s harsh poll numbers suggest growing anger against Obama’s agenda to remake the bench and along with it America.  If only we had thought of this in 2008.