Actually Liking the Constitution Ought to Be a Job Qualification for Federal Judges

On Monday President Trump nominated Brett Kavanaugh, a DC Circuit judge, to fill the Supreme Court vacancy left by Anthony Kennedy.

“My judicial philosophy is straight forward,” said Kavanaugh at the press conference announcing his nomination. “A judge must be independent and interpret the law, not make the law. A judge must interpret the constitution as written.”

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In a perfect world Kavanaugh’s judicial philosophy would be the default for all judges but in the flawed world we live in that is just not the case. More than a few believe that their job is to be arbiters of justice, to correct the voters when they are in error, or simply to do what is right.

On its face, none of these guiding principles sounds awful. Is it wrong to dispense justice? Well yes, it is, when “justice” is merely a gussied-up political agenda. Is it wrong to correct the voters when they have erred? No, not when their elected representatives are violating the Constitution. That’s called judicial review and it’s right and proper. On the other hand, a judge who strikes down a law simply because he finds it wrongheaded, ineffective, or immoral and then scrounges for a post facto rationalization has committed an egregious offense against the republican form of government. That’s called judicial activism. Is it wrong for a judge to simply do what’s right? Yes, because it’s not his place to decide what’s right. That’s our job.

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A judge should never ask if a law before him is prudent or righteous. He should ask how it squares with the text of the Constitution, which ought to be, with the exception of rare statutory cases, his only guiding light. Everything else is bias.

While not all judges seem to revere our founding document, a few appear not even to like it. For example, the recently retired Seventh Circuit Judge Richard Posner wrote an op-ed while still on the bench in 2016 in which he explained in no uncertain terms that the Constitution is basically worthless.

He opined:

“I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation … Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century. Which means that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14th), do not speak to today.”

Posner’s antipathy for the Constitution hasn’t stopped him from decreeing all sorts of laws to be, ahem, unconstitutional. In 1999, he wrote a legal opinion (fortunately the minority opinion) in which argued that a Wisconsin law against partial birth abortion violated the Constitution. The law withstood legal challenge but not for lack of trying on Posner’s part.

Of course, it didn’t violate the Constitution. There’s no right to abortion in the Constitution much less a right to the most gruesome last-minute variety. And yet Posner asserted that the duly enacted law violated that old, useless piece of parchment that he finds irrelevant because he couldn’t keep his personal agenda out of his decision.

Another example of contempt for the Constitution can be found on a higher court, the US Supreme Court. In 2012, Justice Ruth Bader Ginsburg, perhaps the most radical leftist ever to ascend to SCOTUS, explained to an Egyptian audience that they ought not use the US Constitution as a model for their new, post-Arab Spring government. She suggested using the South African Constitution instead.

This is alarming, to say the least.

The current South African constitution become law in 1997 after the end of Apartheid and the rise of the African National Congress, a Moscow-backed crypto-Communist political party that was once the political arm of the terrorist organization Umkhonto we Sizwe.

If American leftists were to write a replacement constitution for our country today it would probably look a lot like South Africa’s. The South African constitution comes with many positive rights including the right to health care. South African healthcare sucks, by the way, but at least everyone has a right to it. The document contains a free speech clause but also a “hate speech” exception that renders it essentially void. Rather than robust free exercise of religion protections it offers a very weak “freedom of conscience” clause. Citizens may believe what they wish, something that no government can take away though many have tried, but citizens must still speak and act as the government commands.

One of the more hideous aspects of South Africa’s constitution is its supposed protection against discrimination, which actually offers no protection at all. I would be fine with this provision if the only discrimination it addressed were the private sector variety but that is not the case. Their constitution prohibits only “unfair” discrimination which is code for discrimination against blacks, leaving plenty of room for supposedly “fair” discrimination against whites.

How do they get away with this? There’s a nice loophole in the constitution: “Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.”

So the state can’t discriminate unless the state decides that it can. The black-majority South African government takes full advantage of this power to discriminate against its white citizens under the policy known as “black economic empowerment.”

This is the document that Justice Ginsburg believes young governments should pattern themselves after. Terrifying.

Evidence exists that Justice Ginsburg does more than merely admire the South African constitution from afar, she seeks to imitate it.

For example, our Constitution does not contain the same allowance for “fair” racial discrimination enshrined in South Africa’s constitution but that hasn’t stopped Ginsburg from ruling repeatedly that it does. In cases such as Fisher v. Texas and Schuette v. Coalition to Defend Affirmative Action, Ginsburg has sided with discriminatory policies that hurt whites and Asians.

She doesn’t seem to like free exercise of religion either. Ginsburg has brushed off this fundamental American precept in such cases as Masterpiece Cake Shop v. Colorado and Burwell v. Hobby Lobby. Clearly, she prefers the pale facsimile known as “freedom of conscience” because of its general meaninglessness.

Ruth Bader Ginsburg has been using her gavel for more than twenty years to hammer our Constitution into something that closely resembles its South African counterpart. No American voted for her stealthy transformation of our founding document but she’s giving it to us anyway, one landmark decision at a time.

Another judge who can’t keep his personal agenda to himself is the thankfully retired John Paul Stevens. This Supreme Court justice wrote an op-ed for the Washington Post entitled “The Five Extra Words That Can Fix the Second Amendment”—which came as a surprise to those of us who didn’t know it was broken.

Stevens argued that the second amendment has been grossly misinterpreted in recent years and suggests gutting the amendment by making a small addition that would nullify the whole thing. Stevens’ new and “improved” second amendment reads as follows: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”

Note the italicized text. Since no one is actually serving in the militia in 2018 this amendment would not prevent the government from seizing every pee-shooter in the country. But at least we could still keep our second amendment as some kind of memento. It would be worthless but at least the gun grabbers could pretend that they didn’t trample on anyone’s constitutional rights.

It should not be overlooked that Stevens stood opposite the pro-second amendment majority on the two most important gun rights cases of the recent era: Heller v. DC and McDonald v. Chicago. In other words, Stevens handed down opinions that reflected the Constitution as Stevens wished it to be, not as it was written.

That’s judicial malpractice. The second amendment was approved by a constitutional convention and ratified by three quarters of the state legislatures. Stevens’s policy wishes were approved by no one except Stevens and they don’t (or shouldn’t) amount to a hill of beans.

Not surprisingly, Stevens wrote an op-ed in the wake of Parkland mass shooting that argued for the repeal of the second amendment. It’s almost as if Stevens had tried for years to erase it by court decision. Stevens didn’t like that amendment and his rulings reflected that prejudice.

These aforementioned judges proved themselves not disciplined enough to resist the lure of power once on the bench. The law is what they say it is, or at least that’s what they believe. Our country can’t afford any more of these judges.

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