Bo Knows . . .

The current political climate notwithstanding, when a President makes a Supreme Court nomination, we stand at a particularly significant moment in history.

The constitution established a Supreme Court to perform certain tasks and functions that made complete the system of checks and balances that our founders found crucial to the continued prosperity of the democratic union in its infancy. In their wisdom, they realized that without this system of checks and balances, government here, like in every other situation, would eventually grow into an oppressive behemoth--the very situation they had suffered great hardship to escape in Europe. They wished their posterity to enjoy the benefits of true liberty, and therefore thought it of paramount importance to address this inherent tendency even as they were establishing the foundational tenets of the new government.

American government has weathered numerous changes in the global political climate. By the standard of time alone, we can consider our government in its adolescence, still far behind the hundreds of years government has operated in many European and Asian nations. The changes that have come to many areas, however, leave the United States's government in the unenviable position of being among those "older" by comparison. We are, undoubtedly, seeing some "growing pains" as our government struggles to meet the needs of its subjects, while attempting to establish and maintain order in any part of the world in which we have an interest.

Through the latter half of our nation's existence, the Supreme Court has taken on a role that our forefathers may or may not have foreseen, but almost certainly never intended. That role has propelled the High Court into seemingly unending controversy, as its justices collectively have redefined the entity into some sort of super-legislature, acting as if their role is to right the wrongs not readily fixed through "traditional" democratic processes. It is, to be sure, a noble endeavour on the surface, with only one critical flaw. There is no such function in the constitution.

The result of this attitude has been a plethora of "new rights" that have been "discovered" within the Constitution. It is not only clear that not every right of the people is specifically enumerated within the verbiage of the Constitution, but also quite obvious that no rights were specifically enumerated.

Hogwash, you say? I call your attention to the text of the first amendment, the first in the series of articles dubbed the "bill of rights." It is prudent to note that the ratification of this set of amendments was of tantamount importance to the founders, to the point of potentially preventing ratification of the constitution were they omitted.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Now, any grade school student will express in no uncertain terms that the above specifically defines and secures the freedoms of religion, speech, the press, assembly, and petition, having had only a cursory exposure to the document. They would be wrong.

The intent of the constitution was never to enumerate the rights of the people, but to specifically enumerate the limitations of the federal government. Such purpose is particularly evident within the text of the tenth amendment. That short statement stands as a summation of the entirety of its preceding articles, explicitly stating that any powers not granted to the federal government, nor prohibited from the states by the Constitution itself would be reserved to the states or to the people.

This concept is obliterated as the Supreme Court Justices comb over the Constitution with the intent of "discovering" the protected rights contained therein. Were they to view the Constitution as a limiting document rather than one that empowers, many of their decisions would have been drastically different.

One concept that particularly reeks of this brand of backward reasoning is the idea that the Constitution somehow guarantees a "right to privacy." There are certain Constitutional guarantees against the inappropriate use of private property by the government, but there is nowhere to be found a concept that an absolute, inalienable right to something called "privacy" exists.

After establishing a constitutional right to privacy, the Supreme Court is left with the responsibility of defining the bounds of that right. Is there any indication that any of the rights of the people were to exist only at the mercy of any government entity? Is there any indication that any right of the people would be defined or limited by any branch of government (or by all three branches acting in concert, for that matter)?

The founding fathers understood that under the government's control, certain rights enjoyed under total freedom would be sacrificed in order to avoid anarchy. This, balanced with the power granted to the government to grant certain privileges, established the harmony of order and freedom that was rightly called "liberty."

Along with the first steps taken in redefining the intent of the Constitution came the inevitable descent into a variety of judicial questions that would never have arisen without that initial assumption. Going back to the "right to privacy," in establishing such a notion, the Supreme Court immediately paved the way for a multitude of legal questions about the boundaries of that right. Having no constitutional framework from which to judge, the Justices were left to their own opinions and beliefs. This led to such abysmally empty decisions as Roe and more recently, Kelo. One calls upon a right to privacy within the context of abortion, the other undermines the rights of ownership of private property, in the interest of the common good. The fact that two opinions that have such radically different approaches to "privacy" illustrates how far the Supreme Court is prone to drift away from the central statements of the Constitution when left without any constitutional framework as the foundational element of its collective reasoning.

What, then, is the role of precedence? We've been told that certain cases constitute some sort of "super-precedence" that should not in any wise be overturned or revisited. The principle of stare decisis is cited as supportive of this view, and a nominee for the High Court is rightly expected to share his views on that principle. What, then, is the right attitude to take towards that concept? I propose that at the level of the Supreme Court of the United States, there is no room for such a concept, as it's recognized as the highest court in the land. An appellate judge must certainly rule with an eye "upward" to those courts above his jurisdiction, but the only higher law than the Supreme Court is the Constitution itself. Under that premise, there is no ruling that should not be evaluated anew any time a current case calls for such reevaluation.

Were the notion of stare decisis on the Supreme Court level not utilized so often, I sincerely doubt Plessy v. Ferguson would have lasted some six decades. How many people who uphold the legitimacy of Roe as a "superprecedent" would argue that Brown v. Board of Education was a maligned ruling because it overturned a sixty year-old decision? Bad law is bad law, and it shouldn't take six-tenths of a century to correct it.

So much has been made of the potential for a ruling that overturns Roe, that SCOTUS nominations are essentially shoehorned into one category or another, based only upon their position on abortion, when the ruling from the High Court should hinge upon the constitutionality of the law, not its moral implications. The question is not nearly so much whether abortion is right nor whether the fetus is alive, but rather whether government is specifically given the power to regulate in that area. Strictly speaking, if the Constitution prohibits the Federal government from banning abortion nationwide, it would likely also forbid the Federal government from legalizing it nationwide. There are simply precious few restrictions placed upon state governments at the Federal level, according to the Constitution.

What of things like the freedom of religion and the separation of Church and state? In lieu of an itemized list of dos and don'ts, the principles outlined in the Constitution were sufficient to the framers to guarantee that the free exercise of religion would not be infringed upon by the government. Would they have left the language so open had they forseen the draconian restrictions imposed by the Supreme Court over the past twenty years on that freedom? I don't believe that they in any way anticipated that the protections that they had placed as a hedge about religious freedom would be used as the means to eradicate religion from public life. Again, an indication that when the High Court steps away from the eloquent simplicity of the Constitution, it ventures into an area devoid of guidance, save that from political agenda of the day, an area in which the Supreme Court was not designed to operate.

The beauty of the Constitution is truly within its simplicity, utilizing principles instead of rules. Back to the First Amendment's protections towards religion, is the intent of the framers really in question? There were two things that they wanted to avoid: an official religion, sanctioned, established, and controlled by the state; and a government that restricted the free exercise of religious practices and beliefs. That's the reason for the twofold guarantee, and that's about the extent of the principle. In the founders' wisdom, they felt that to further detail the relationship would be pointless, as their two goals would be readily visible to anyone with a smattering of common sense and historical context. Alas, they could not foresee the effects of revisionist history, coupled with a dearth of common sense, in bringing about the belief that the Constitution contains a guarantee of freedom from religion.

Indeed, even the nature of appointments to the High Court being as they are, for a lifetime, indicate that the founders never intended for that governmental body to cater to the whim of a fickle constituency, but rather to serve alongside our elected representatives as a buffer to the ebb and flow inherent in democratic government. Plato called democracy a bad form of government, citing that it gave way to "mob rule" then to anarchy. Our representative democracy and an appointed Supreme Court were designed, among other things, to insure that the Constitution was not trampled beneath the feet of that mob.

The nomination of Judge Alito seems to be a strong move towards a court which will concern itself with the content of the Constitution, not with either a conservative or liberal political agendum. An originalist interpretation of the Constitution will return some autonomy to the states, and will be the first step in returning the Federal government to its rightful level of involvement in the lives of its citizens. That, in turn, will pave the way for a content and prosperous populace, a body of citizens who will once again see the Federal government as a noble institution that serves the people, not a tyrannical taskmaster obsessed with extending its reach.