There seems to be one thing on which everyone can agree. From archconservative pundits to archliberal White House staffers responsible for Solicitor General Elena Kagan's confirmation to the Supreme Court, all agree that the test is whether she is in the "mainstream of current legal thought."
But it would seem to me that such a standard only makes sense if you approve of where the mainstream currently is. For instance, left-wing statists -- who believe in almost unlimited powers of government, who heartily approve of the Supreme Court's ruling in Kelo v. New London (which authorized a city to take non-blighted private property from its lawful owner and give it to someone else solely so the city can make more money), who believe that the Interstate Commerce Clause authorizes Congress to regulate every action or inaction of everyone living south of Canada and north of Mexico -- would like all current and future court nominees to enjoy wading in the current mainstream.
But wouldn't it make sense for those of us who believe in original intent (and in this instance "us" would seem to include almost all Republican senators, based on their public statements) to support only nominees who hold to the standard of the mainstream of legal thought as of Sept. 17, 1787, when the writing of the Constitution was completed (or perhaps as of March 4, 1789, when the Constitution went into effect)?
After all, James Madison, who largely wrote the Constitution, obviously would be unqualified to interpret it today because it is a mathematical certainty that he would be appalled at the "mainstream of current legal thought."
For instance, consider a leering Democratic senator grilling Madison in 2010 on his views concerning the current mainstream theory of "a living Constitution," which requires that the Constitution be viewed in the context of today's events. Being an honest man, Madison would have to repeat what he said whilst he was alive: "Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government."
Oh, dear, that puts Madison dangerously outside the current mainstream.
Blankley, who had been suffering from stomach cancer, died Saturday night at Sibley Memorial Hospital in Washington, his wife, Lynda Davis, said Sunday.
In his long career as a political operative and pundit, his most visible role was as a spokesman for and adviser to Gingrich from 1990 to 1997. Gingrich became House Speaker when Republicans took control of the U.S. House of Representatives following the 1994 midterm elections.
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