15 June 2006

Coming soon: A “conservative” judicial tyranny?

Mike Rosen interviewed Mark Smith, the author of Disrobed, who wants to use the Constitution against the left the way the left have used it to advance a liberal agenda. In other words he wants what I suppose we should call “reverse judicial activism.” While denying, the left’s “living, breathing document” thesis, he nevertheless argues for its use by the right. (In other words he wishes to employ what he holds to be an illegitimate tool to accomplish what he regards as legitimate ends.) So, for example, while Roe v. Wade is on all accounts bad law, we (i.e., the right) can still make use of the right of privacy which Roe recognizes in order to push a conservative, free market agenda. In other words, Smith wants to play the left’s own game against them. We can employ improperly decided cases to bring about proper ends.

I can’t get past the fact that whether or not he explicitly denies the “living, breathing document” thesis, he wants to apply it anyway. But,
as I’ve said before (not that I’m the only one who has) this approach to the law, however well-intentioned, ultimately means that there is no law. If the Constitution is a “living, breathing document” then there is no Constitution; we have no rights. I cannot see why someone who calls himself a conservative, and wishes to be worthy of the name, should propose such a move.

One of the hallmarks of conservatism has been, among others, the rule of law. One of the other hallmarks has been objection to the rule of unelected judges. Conservatives, at least since I joined the movement in the early 1990s, have asserted the obligation of all our leaders, Executives, Legislators and Judges to obey the laws. This idea is something to which, in my experience, the left have by and large given mere lip service. The “great work” of the left is much more important than the laws, when the laws (“unfairly,” of course) work against that “great work.”

As a Christian, I must admit to having necessarily right-leaning views (without, at the same time, being co-opted by the political right). However, what I most want, and what I believe God calls me to want most, is a nation ruled by laws, not men. By that I mean that we are to be ruled by the laws, and not by the personal whim of men. What Smith proposes, despite its understandably angry rhetoric is the substitution of a rightist judicial tyranny for a leftist one. As it turns out, he doesn’t oppose tyranny; he just wants a “conservative” one. We ought to think that “conservative tyranny” is a contradiction is terms. Clearly, he doesn’t.

I won’t have it, not even for the sake of conservatism, but especially a “conservatism” which ultimately, if implicitly, rejects the rule of law in favor of the rule of nine Supreme Court justices.

Inasmuch as I have resented a leftist court vetoing rightist legislation by judicial fiat, I do not believe that the sort of integrity to which God calls us permits us to get back at the left by using the courts to do unto leftists as they have done unto us. And let’s not kid ourselves: what Smith is arguing for is a Court no less tyrannical, however “conservative,” than the one we presently have.

In my aforementioned post, I wrote: “This ‘living, breathing document’ could become as arbitrary a ruler as the worst tyrant—all the while hiding from simpletons the fact that the real tyrants are the black-robed pretended prophets who claim to be translating for us the will of this living, breathing, riddle speaking oracle.” That won’t change just because the tyrants are “conservative.”

NOTE: I am arguing here against Smith’s position as he explained it to Rosen, not as he explains it in his book. I have not yet read the book.


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James Frank Solís
Former soldier (USA). Graduate-level educated. Married 26 years. Texas ex-patriate. Ruling elder in the Presbyterian Church in America.
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