Geoffrey R. Stone, a professor of law at the University of Chicago and a member of the national Board of Directors of the leftist American Constitution Society, wrote an op-ed article today for The New York Times entitled “Our Fill-in-the-Blank Constitution.” The title pretty much describes where Professor Stone is coming from. He believes that the Constitution is in essence a living document whose text is as malleable as the current times we live in.
Stone accuses conservative judges of hypocrisy. They do not merely try to apply the law, he argues. They are at least as activist as their liberal counterparts, says Stone, but commit the mortal sin of exercising the power of judicial review to:
invalidate laws that disadvantage corporations, business interests, the wealthy and other powerful interests in society
Stone goes so far as to argue that the approach of liberal judges in exercising the power of judicial review to protect minorities, the accused and political dissenters
fits much more naturally with the concerns and intentions of people like Madison who forged the American constitutional system
Stone’s assertion misrepresents James Madison’s position and that of our other Founding Fathers. Yes, Madison did believe in the importance of judicial review of the acts of legislatures as a check on unbridled power of the majority against the rights of the minority. However, conservatives are far more in synch than liberals with Madison’s fear of a judiciary that goes too far by legislating from the bench. In a letter he wrote in 1788, for example, Madison expressed concern about the judiciary’s exercise of power that:
makes the Judiciary Department paramount in fact to the legislature, which was never intended and can never be proper.
The Constitution is all about limits on federal power and, by extension through the Fourteenth Amendment, on state power as well. Thus, both liberal and conservative judges are correct when they uphold the First Amendment right of free speech against laws clamping down on political dissent or on laws restricting associations of individuals – whether corporations or unions – from spending as much as they wish to endorse or oppose a candidate for public office.
With all due respect, where Professor Stone goes wrong is to confuse the Supreme Court’s power to determine limits on the acts of the other two branches of the federal government and of the states, where those acts either exceed their powers or trample on the rights of the people, with the notion that the Court can create new rights on its own say-so that are not found in the text and structure of the Constitution itself.
The Constitution does not mandate that the federal government or state governments must redistribute wealth or provide everyone with benefits. When liberal activist judges decide that legislatures have not gone far enough towards their ideal of the perfect, just society and declare what they think the law should be under the guise of constitutional interpretation, that is when they go too far.
Yet those are precisely the kind of judges that President Obama wants to see on the federal courts. In a 2001 interview on Chicago’s public radio station WBEZ FM, he complained that
the Supreme Court never ventured into the issues of redistribution of wealth…It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution
President Obama’s Federal Ninth Circuit Court nominee, Berkely Professor Goodwin Liu , illustrates what is at stake. Liu, chair of the board of the leftist American Constitution Society on which Professor Stone also sits, complained to the American Constitution Society’s 2004 national convention that:
The Constitutional world that we inherit today is not the revelation of some natural law or some neutral principle. It is an edifice carefully crafted and aggressively built in the image of conservative ideology…Some day maybe soon, the wheel of history will turn
With this kind of activist judge on the bench and more to follow if President Obama gets his way, the heavy wheel of progressivism will crush the Constitution.