Bruce Fein, a conservative lawyer, argues against the Harriet Miers nomination by invoking the cronyism argument:
The Senate should reject the nomination to honor the original meaning of the Constitution. As Alexander Hamilton amplified in Federalist 76, the Senate confirmation role was intended to “prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.”
Now, I brought up Federalist 76 the other day, although I did not state that Miers’ nomination should be rejected under Hamilton’s standard. I certainly do not think Hamilton’s argument alone constitutes the “original meaning” of the advice and consent clause. The text does not limit–or require–senators to rejecting a nominee because of cronyism.
But that isn’t what caught my attention. Rather, Fein’s invocation of “original meaning” is laughable, because Fein himself is a vocal advocate of government activities that are well outside the “original meaning” (or the original text) of the Constitution. Just this week, Fein published an article demanding the repeal of baseball’s antitrust exemption:
“Major League Baseball is the signature of the United States both at home and abroad,” said Fein. “MLB should thus be celebrating free enterprise as the Magna Charta of economic liberty, not embracing a collectivism which time and wisdom have discredited.”
By “free enterprise,” Fein meant the antitrust laws, which the Supreme Court has called the “Magna Charta” of economic liberties. Of course, Fein has his premises backwards: It is the antitrust laws that promote collectivism by abolishing the right of contract and put government lawyers in charge of approving business practices on an ad hoc basis.
But perhaps Fein’s greatest departure from “original meaning” comes when discussing the government’s militant anti-drug policies. I vividly recall a column from a few years ago where Fein called on the Supreme Court to endorse unrestricted drug testing of students in government schools. And I found this abstract of a 1992 Fein article where he abandons all pretense of supporting individual rights against state violation:
[Fein] asserts the case for legalizing drugs is unpersuasive at best. His approach is that in a free society, the people forego certain liberties and rights as the price for freedom. Ironically, these rights are guaranteed when a nation is economically, politically and militarily strong. If a nation is not strong, these rights will be lost. Therefore, America has the right to foreclose the use of illicit drugs, denying its citizens the element of choice, to support this ideal.A nation has the right to be justifiably concerned that its citizens be capable of making substantial contributions to its strength. There are, and always have been, infringements upon personal liberties such as compulsory education laws, peacetime conscription and english literacy requirements for naturalization. Incidence of incapacitating drug abuse is substantial and users frequently commit other crimes and many of the people that commit these crime make little or no contribution to the nation’s strength
The premise of Fein’s argument is explicitly collectivist and anti-free market, not to mention inconsistent with any “originalist” interpretation of the Constitution. Yet somehow baseball is anti-American and Harriet Miers is unqualified for the Supreme Court. Those premises might be true, but Fein is certainly in no position to make the case.
Then again, whenever conservatives refer to “strict constructionism,” they usually apply it only to the judicial branch, never Congress or the President. After all, if Congress didn’t pass unconstitutional laws and the President didn’t enforce them (see campaign finance), then nobody would have to worry about the courts engaging in “judicial activism.”
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While my comment does not directly address the cronyism issue, Tuesday’s “Wall Street Journal” ran a front page article stating that 23 of the 53 Supreme Court Justices appointed since 1900, including Earl Warren and William Rehnquist, had no previous judicial experience. Interesting.
So free enterprise is “collectivism,” and antitrust is “free enterprise,” and “people forego certain liberties and rights as the price for freedom.” No wonder the only conservatives left have to resort to South Park to get their “message” out.
I’m puzzled by this comment of Oliva’s:
“After all, if Congress didn’t pass unconstitutional laws and the President didn’t enforce them (see campaign finance), then nobody would have to worry about the courts engaging in ‘judicial activism.’ ”
How’s that? The federal courts have leaped into all sorts of things that, at the time, had little bearing on the actions of the federal executive and legislative branches.
Brown v. Board. Roe v. Wade. Ad nauseum. Those were all attacks on the authority of state and local government. Indeed, those are the most famous instances of the right-wing critique of the federal courts since about the middle of the 20th century.
Pardon my lack of exposition on the judicial activism point. My argument was not meant to dismiss the federal courts’ transgression of state and local governments. But my theis is sound–judicial activism is derivative of executive and legislative malfeasance.
Both Brown and Roe depend upon the 14th Amendment, an act of Congress in the first instance. The amendment opened the door for later judicial interference by abolishing the reservation of powers to the states in the Tenth Amendment and substituting raw federal power in its stead. In the years since, succeeding congresses and presidents have made no effort to precisely define the scope of the amendment’s vague clauses and hold the courts to such limits.
The courts have no existence independent of congressional action, as their structure is not expressly provided for in the Constitution. Congress has the authority to define the structure–and jurisdiction–of the courts. Since the mid-19th century, Congress has chosen to create more layers of judicial review while expanding the scope of federal jurisdiction to include virtually any dispute.
One of the most substantial errors, in my view, was Congress’ decision in 1931 to give the Supreme Court the power to decide its own docket via the Certiorari Act. This, more than any other single act, set the stage for what has become known as “judicial activism.”
If conservatives were serious about reining in the courts, they would stop focusing on individual nominees to the Supreme Court–a centralist approach–and work to dismantle and decentralize federal jurisdiction. Repeal the Certiorari Act, abolish federal appeals of state cases, restrict the Supreme Court’s appellate jurisdiction, and so forth.
Thanks for the clarification.
In this regard, I think at least two other things might be stressed about the 14th Amendment:
(1) It was, prima facie, never legally enacted. Its provisions would be ignored and dismissed out of hand by any federal court with a conscientious mission to uphold the Constitution.
(2) Even if we stipulate, argumentum, that the 14th was enacted, the federal courts have been wildly inventive and expansive in the application of what you call its “vague clauses.”
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