The battle for the Constitution

Posted: Jun 24, 2003 12:00 AM

Gregory Peck, who died earlier this month, had many roles for which he will long be remembered. The one that may have had the most influence on this country was the "voice-over" he provided in 1987 for a TV commercial falsely characterizing Supreme Court nominee Robert Bork as favoring poll taxes and literacy tests, among other horrors.

The same liberal groups that "Borked" Bork are preparing a campaign against President Bush's nominee, should one or more justices retire. Sens. Tom Daschle (D-S.D.) and Patrick Leahy (D-Vt.) have called on President Bush to "consult " with them to avoid a "divisive confirmation fight."

What this nearly 40-year battle has been about is not just specific issues but the Constitution itself. Did the Founders know what they were doing when they wrote the greatest document ever penned by human hands that organized self-government for individuals, based on certain immutable principles, or were they merely creating an outline, the rest of which could be filled in as it pleased the courts? The answer to that question will determine the future of our country. We cannot afford to continue to get it wrong.

Since he was denied a seat on the court for which he was uniquely qualified, Robert Bork has produced a body of work that makes the case for returning to the "original intent" and understanding of the Constitution. He has consistently begged Americans to consider the history of the document and not how it has been "spun" by judges and advocacy groups into meaning what they want it to mean.

In a compelling essay, Bork again has taken on the argument for a "living Constitution" advanced by liberals who have used the courts, instead of the legislatures, to enact an agenda that would never have been embraced by elected officials for fear of voter backlash.

Writing in the publication The New Criterion (Nov. 21, 2002), Bork reviewed New York attorney Martin Garbus' book, Courting Disaster: The Supreme Court and the Unmaking of American Law."

Right (or in his case Left) from the start, Garbus claims the Supreme Court has been taken over by right-wingers (David Souter? Anthony Kennedy? Sandra Day O'Connor?). He sets up the ideological preview of coming liberal attractions that will demand Bush be stopped from putting "extremist " judges on the court. None of Garbus' assertions are true, but this is the "reality" liberals will create, and much of the media will willingly follow their lead.

The real issue, as Bork writes, is not naming "ultra-right ideologues" (Garbus' phrase), but whether "(Bush) will try to appoint justices and judges who interpret laws according to the understanding of the principles of those laws when they were enacted." This is an important point, because if laws are to be made by the courts, what is the purpose of Congress? Are we to be guided by the idea enunciated in 1803 at the dawn of our nation by Chief Justice John Marshall: "The government of the United States has been emphatically termed a government of laws and not men"? Constitutional attorney John Whitehead has written, "This meant that even the state, its agencies and its officials were under the law, not above it."

The opposite (and currently prevailing) view of the Constitution is the judicial philosophy of Justice Felix Frankfurter. Speaking of Supreme Court justices, Frankfurter said, "It is they who speak and not the Constitution." That view was echoed in a 1958 Supreme Court decision (Cooper vs. Aaron): "Article VI of the Constitution makes the Constitution the 'supreme law of the land' .. It is emphatically the province and duty of the judicial department to say what the law is .. It follows that the interpretation of the (Constitution) enunciated by this Court . is the supreme law of the land .."

When the Constitution is not the supreme law, the Supreme Court will inevitably come to see itself as the supreme law. Charles Evans Hughes, who became chief justice in 1930, remarked earlier: "The Constitution is what the judges say it is."

President Bush needs to give the public a brief history lesson as he nominates federal judges, and especially Supreme Court justices, if he is to counter the disinformation campaign now being prepared by those who would discard the Constitution and make up the law as it suits them.