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The Living Document, RIP

(Reprinted from SOBRANS, January 2006, page 1)
Both John Roberts and Samuel Alito survived their confirmation hearings, winning praise for their poise and legal acumen, as well as rueful respect for their deft sidestepping of the Big Issue: Roe v. Wade. Liberals grumbled that they were “extreme” and “outside the mainstream” for having expressed doubts, at various times in the past, about Roe and other sacred liberal precedents, such as those requiring reapportionment of state legislatures under the Fourteenth Amendment.

Amusingly enough, it was Justice William O. Douglas, the liberals’ liberal, who observed, “No patent medicine was ever put to wider and more varied use than the Fourteenth Amendment.” Truer words were never spoken — certainly not by Douglas, anyway. Nearly every judicial ruling liberals like to call “historic” has relied on this badly worded and illegally ratified excrescence on the Constitution. It can be twisted to mean nearly anything, and has been.

But the very word historic suggests the truth: that all these bold rulings were controversial in their day, which is to say, outside the mainstream. When they were handed down, there were certainly two sides to many issues, with liberal justices audaciously taking the novel side (and even they were far from unanimous in many cases). Once that was done, however, it appears that the traditional views thus overturned became taboo, and it was the part of conservatives to conserve the liberals’ gains. The old mainstream was dead; long live the new mainstream!

Henceforth This the lead article to the January 2006, issue, The Living Document, RIP -- Read Joe's columns the day he writes them.liberals would add a new wrinkle to their rhetorical zeal for dissent and independent thinking. When practiced by their opponents, these admirable things abruptly became vices and acquired pejorative names like extremism. Hence the rejection of Robert Bork, who had indiscreetly criticized the flimsy reasonings and rulings of both the Warren and Burger courts; hence the pressure on subsequent Republican nominees to swear fealty to those things Bork had so rudely profaned.

A liberal is one who can be open-minded about anything except the past; about that he is strictly a bigot. He divides the past into two broad categories, the “progressive” and the “reactionary,” and once a thing has been placed in the latter column (also called “Neanderthal” or “medieval”), it never gets another chance. From then on it’s Roma locuta, causa finita, as it were. The Deposit of Faith has been infallibly defined. Or, in the terse formula of the Brezhnev Doctrine, “What we have, we keep.” So much for the Living Document!

Happily, a new era is upon us, liberals have lost their long monopoly of power, and so this great rule of liberalism is becoming unenforceable. Roberts and Alito prudently tiptoed past some touchy questions, with respectful nods to stare decisis, and lo! The U.S. Supreme Court, though it still leaves much to be desired, now has four justices who are willing to view the past with open minds. At this point, that’s about as much as any reasonable reactionary can hope for.

Joseph Sobran

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