Or what if a sensible, moderate Republican senator were to inquire helpfully of Madison whether he sees any constitutional problem with Congress authorizing bureaucrats to promulgate hundreds of thousands of complex detailed requirements to enforce a universal health law. Again, citing his statements back in his living days, the honorable Madison would be compelled to testify: "It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood."
The notional senator doubtless would turn to the cameras and say: "My, my, what a Neanderthal backwoodsman this Madison character is -- so out of the current mainstream of legal thought. How in the world could our federal government provide all the current and future 'services and benefits' to the citizens, if such thinking were permitted on the Supreme Court?"
That notional question is, of course, at the heart of what is quickening the countless millions in the Tea Party movement. If the Supreme Court would follow the dictates of the Constitution, much of the vast deficit-creating, individual-freedom-crushing current laws of the land would be unconstitutional.
Thus, Republican senators need to understand that, notwithstanding all their fine statements over the years about looking for justices who believe in "original intent" and don't believe in "creating law from the bench" will be for naught when the Tea Party voters measure those Googled words against the senator's Googled vote for Ms. Kagan because she is in the "mainstream of current legal thought." Changing the mainstream of current legal thought is a big part of what the November election is about.
Not just Tea partiers, either. According to Gallup's most recent poll in 2009, 59 percent of Democrats like the ideology of the Supreme Court, but 58 percent of Republicans are not satisfied with its current ideology. Just 9 percent of Democrats think the court is too liberal, while 49 percent of Republicans think it is too liberal.
So when a Republican senator considers the appropriate standard for judging Ms. Kagan's fitness for the high court, he should not be fooled by the responsible-sounding phrase "in the mainstream of current legal thought."
Rather, he or she should fall back on his own often-repeated original-intent, conservative standard and filibuster the brilliant Ms. Kagan's confirmation vote precisely because she is in the current mainstream -- a location that has been deeply dredged by Franklin D. Roosevelt and his progeny for the past 75 years.
This November's voters look forward to the day when Madison once again would be found in the mainstream of current legal thought -- as he was when he formed the original stream.
Tony Blankley
Tony Blankley, a conservative author and commentator who served as press secretary to Newt Gingrich during the 1990s, when Republicans took control of Congress, died Sunday January 8, 2012. He was 63.
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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