Tuesday, September 4, 2018

The Coming Restoration of the Constitution - By Stephen B. Presser

Just as the upcoming midterm elections may be the most important of our lifetimes—since they will determine if the Trumpian Counter-Reformation will continue or be frustrated—the hearings this week on the nomination of Brett Kavanaugh to the United States Supreme Court are a watershed event in jurisprudence.
Fifty years ago there was a fragile consensus, even in our great law schools, about how justices were to go about doing their jobs. That consensus was formed by admiration for Felix Frankfurter, the occasionally mercurial, but stunningly brilliant, appointee of Franklin Roosevelt. Frankfurter, contrary to the later pattern of justices appointed by Republican presidents, moved to the right on the court, becoming more conservative with age. By the end of his career, in a series of thoughtful opinions, he had explained that the task of a justice was not to formulate new constitutional law according to his personal preferences, but, rather to exercise restraint and wisdom in preserving the original constitutional scheme of separation of powers and preeminence of state and local governments.
For Frankfurter, and for sensible justices since, in particular Justices William Rehnquist, Antonin Scalia, and Clarence Thomas, the federal government was one of limited and enumerated powers, and justices were supposed be jurists, not legislators.
By the turn of the 20th century in the law schools, at least, as I tried to show in my recent Law Professors: Three Centuries of Shaping American Law, the Frankfurtian consensus had collapsed, so-called “legal realism” had triumphed, adherence to the rule of law was out of favor, and the task of justices had been reconceived as that of Ephors uniquely qualified to dictate rules for the rest of their fellow Americans.
Dismantling the Old Constitution
It takes about 30 years for the wildest ideas in the legal Academy to be transformed into mainstream jurisprudence, and thus the jurisprudence of the far Left—Critical Legal Studies (the principal tenet of which is that law is simply politics)—which was in ascendance in the mid 1980s, profoundly shaped decisions such as Obergefell v. Hodges (2015), when the Supreme Court declared—rejecting millennia of experience—that the United States Constitution mandated that marriage could no longer be limited to a bond between one man and one woman. This followed the landmark opinion in NFIB v. Sebelius (2012), when Chief Justice John Roberts, who prior to that time had been regarded as a fairly reliable conservative, in the course of upholding the Patient Protection and Affordable Care Act (“Obamacare”), virtually declared there were no longer any limits on Congress’s legislative power.
Put simply, the court had laid the groundwork for the destruction of our constitutional scheme, and had nearly abandoned the traditional ideas that judges were not legislators and that it was the state and local bodies, not the federal government, that were supposed to be the primary movers in national life. Justices David Souter, Sandra Day O’Connor, and Anthony Kennedy, all Republican appointees, had been instrumental in this dismantling of jurisprudential tradition, but they are all gone now.
President Trump, influenced by Leonard Leo and the Federalist Society, as well as the Heritage Foundation, pledged to reverse this dismantling, and this was enough to garner him the support of a few of us traditionalists in the academy. He confirmed our faith in him with the Neil Gorsuch appointment, and he has done the same with the nomination of Brett Kavanaugh, a man squarely in the Frankfurtian mold, even if he comes from a hotbed of anti-Frankfurtian jurisprudence, Yale Law School. The Life of the Law, it would seem, is full of ironies.
A New “Swing Justice”
The Left has been apoplectic since the announcement of Kavanaugh’s selection, as it accurately perceives that this may mean a new direction on the court. Where Justice Kennedy had been the “swing justice,” supporting his progressive colleagues on social issues such as gay marriage and abortion, Kavanaugh’s joining the court will give the “swing” position to Roberts, perhaps the least conservative of what will now be a group of five.
Adam Liptak, the New York Times’s Supreme Court correspondent, and thus a reliable barometer of the progressives’ view of the Court, declared, “If Roberts assumes that position . . . he will lead a solid five-member conservative majority that would most likely restrict access to abortion, limit the use of race-conscious decisions in areas like college admissions, uphold voting restrictions, expand gun rights, strike down campaign finance regulations, and give religion a greater role in public life.”
Just so. The Supreme Court is not going to overturn Roe v. Wade (1973), the decision that somehow discovered a right to terminate a pregnancy in penumbras and emanations from various amendments, but that decision was clearly without adequate constitutional foundation, and the court has already begun the process of returning the protection of fetal life, at least in the later months of pregnancy, to the states, where traditionally it belonged. The same can be said of the protection of the right to vote, which even the 14th and 15th Amendments recognized was a matter for state and local governments.
Liptak is probably right about future court decisions by a conservative majority that may end other nefarious aspects of federal campaign regulation, as they should be ended. Such legislation, with the damnable McCain-Feingold law as the worst example, ought to be seen for what it is—incumbency protection. The remnants of McCain-Feingold and other such legislation effectively prevents newcomers to politics who cannot afford the consultants and lawyers who are necessary to conduct modern campaigns without running afoul of arcane and onerous rules, and the possible risk of fines and prison terms for violations.
A Litany of Dog-Whistles for the Left
This was a country founded on the propositions that there can be no order without law, no law without morality, and no morality without religion, as Supreme Court Justice Samuel Chase declared in a grand jury charge in 1803, voicing sentiments shared by Alexander Hamilton, George Washington, and before them, William Blackstone and Edmund Burke. Thus, it will be a salutary development if, indeed, the court gives religion, in Liptak’s words, “a greater role in public life.”
The Left’s dream of repeal of the Second Amendment is not going to be realized, and, accordingly, the court may, as Liptak expects, protect the traditional right to bear arms. That is now recognized as an individual right, like the others guaranteed in the Bill of Rights, and it should be no surprise that a conservative court would enforce it.
Conservatives traditionally have recoiled from the Left’s penchant for counting by race, and for seeing individuals not as fully-formed and unique human beings, but as markers in a political game pitting ethnic groups against each other. Increasingly, conservatives have held with Martin Luther King, Jr., that Americans should be judged by the “content of their character” (as well as their innate talents and abilities) rather than by the “color of their skin.”
Chief Justice John Roberts has been eloquent in condemning racial politics, and if he leads the Court to limit the “use of race-conscious decisions” he will be leading it in the right direction.
Liptak’s litany of dog-whistles for the Left are actually a program of traditional and sensible jurisprudence for the Right, and for the nation. President Trump has made a second brilliant appointment to the Supreme Court, and though the Left will rage this week, there should be enough senators who understand that it is the popular organs like the Senate that should be making the law, not the judicial branch, and that the Constitution will be better preserved in the hands of a Justice Kavanaugh.
About the Author: Stephen B. Presser

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Pritzker School of Law, and the author of “Law Professors: Three Centuries of Shaping American Law” (West Academic Publishers, 2017). Next year, Professor Presser will be a Visiting Scholar in Conservative Thought and Policy at the University of Colorado, Boulder.