David Harsanyi

With all the praise being heaped on departing Supreme Court Justice John Paul Stevens, a person might have forgotten momentarily that the man spent a good chunk of the past two decades working to soften up the Constitution.

Rest assured, his replacement will take to the task capably -- empathy above justice, and all that -- but what I really look forward to is the confirmation battle because Democrats, according to Politico, plan to turn Senate hearings into a referendum on "corporations vs. the common man."

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According to the story, Senate Judiciary Committee Chairman Pat Leahy's political strategy will be offered up in a simple question: "Do you share our concern about the fact that the court always seems to side with the big corporate interests against the average American?"

One would think that the victor (and to contend that the court "always" sides with big corporate interests is preposterous) would be less significant than the constitutional merits of the decisions.

Then again, ginning up anger about corporations is always a useful distraction, because what Leahy is really asking is this: Do you share our concern that the Constitution, too often interpreted as written, is holding back an empathetic and enlightened progressive agenda?

You remember the outrage over Citizens United v. Federal Election Commission? In that case, some "average Americans" decided to produce a political film about Hillary Clinton. It was censored by the FEC because, as everyone knows, the First Amendment should not apply to unsavory characters who've gotten themselves mixed up with corporate interests.

Lest anyone forget, Stevens -- in a spirited dissent -- sided with government, who argued that even books (no more legitimate a vessel for political speech than any other, actually) could be banned by government through campaign finance laws if necessary.

So Leahy, who believes Stevens is a model jurist, likely will ask many piercing questions (How evil is corporate America, Nixon evil or merely Nazi evil?) in defense of average Americans.

But I wonder whether the average American believes, like Justice Stevens, that an unelected federal agency, such as the Environmental Protection Agency, should bypass Congress and, by fiat, regulate carbon dioxide, a chemical compound that permeates everything, without any consideration for cost or imposition or the electorate?

David Harsanyi

David Harsanyi is a senior editor at The Federalist and the author of "The People Have Spoken (and They Are Wrong): The Case Against Democracy." Follow him on Twitter @davidharsanyi.