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 The Constitution and Common Sense 

November 3, 2005 
We are being assured that Judge Samuel Alito, like John Roberts, and in contrast to poor Harriet Miers, is superbly qualified for the U.S. Supreme Court. He sounds good to me, but I wonder. Today's column is "The Constitution and Common Sense" -- Read Joe's columns the day he writes them. Specifically, I wonder what qualified means.

The people who insisted that Miers didn’t measure up almost made me wonder what up means. Interpreting the U.S. Constitution shouldn’t be all that difficult. It’s written in plain English for ordinarily intelligent people. The only hard part is ridding your mind of all the false interpretations that have confused people about it.

If you search it for something about “the separation of church and state,” “freedom of expression,” “the right to privacy,” or even “democracy,” you may be surprised to find it isn’t there. We’ve been told so often that all these things are there somewhere that it’s hard to shake the idea they are what it actually says and means. The real trick is to stop reading things into it.

Being a Supreme Court justice shouldn’t require much intelligence. And it obviously doesn’t, or how could undistinguished people like Sandra Day O’Connor, Anthony Kennedy, and David Souter hold their own on the Court? They are praised because liberals like the way they vote, not for any special legal insight they possess.

If anything, the Court is notable for the number of its members who have been short on common sense. Kennedy is best known for his silly opinion that defining the universe is a constitutional right, and that somehow this right is umbilically related to the right to kill unborn children.

What we really need are justices who can refrain from reading their pet notions into the Constitution. It may seem that this isn’t asking much, but the Court has a considerable legacy of nonsense uttered by men who have supposed that judicial robes confer philosophical profundity. The late William Brennan, for example, called the Constitution “a sublime oration on the dignity of man.” Oration? Sublime? Dignity? Where on earth did this embarrassingly orotund rhetoric come from?

[Breaker quote for The Constitution and Common Sense: We needn't look far for "original intent."]Justice Stephen Breyer, one of the Court’s leading liberals today, avoids the absurdities of Kennedy and Brennan. Nor does he repeat the cliché that the Constitution is a “living document,” which always turns out to mean that it can be virtually amended by the judiciary, without the forms of amendment prescribed in the text itself.

Breyer is the subject of a flattering profile by Jeffrey Toobin of The New Yorker. Breyer sounds like a pleasant, reasonable man, and Toobin stresses that he believes the Court should respect the will of the legislative branch, overturning acts of Congress as seldom as possible. In contrast to Antonin Scalia and Clarence Thomas, Toobin observes, he doesn’t seek the “original intent” of the Framers of the Constitution.

“The message I’m trying to provide,” Breyer says, “is that there is more to the Constitution than a Fourth of July speech. It was a serious objective of the framers that people participate in the political process. If people don’t participate, the country can’t work.”

But the Constitution says nothing about “participating in the political process.” These are buzzwords of our own time, never used by the Framers. If popular participation is the whole idea, where does that leave the elitist practice of judicial review?

And by the way, in ascribing this “objective” to the Framers, isn’t Breyer just giving his own version of their original intent? How does he know what their intent was, apart from the words they used?

Agreed, the Constitution isn’t a Fourth of July speech. Let’s just stick to what it actually says. That won’t answer every question, but it will take us pretty far, and it may save us from the temptation to answer questions that haven’t been asked.

Unfortunately, common sense isn’t a subject taught in the law schools, not even our most prestigious law schools. On the contrary, the more clever the lawyer, the more he may delight in reaching excessively clever — or “counterintuitive” — conclusions, such as that the Constitution protects abortionists.

Let’s not pretend that reading the Constitution is harder than it really is. The Framers’ original intent is clear enough, because it’s expressed in the words they agreed on, not in musty archives or arcane theories. Most of the problems arise only when lawyers try to substitute modern words for those of the text. The chief “qualification” for a justice should be good sense.

Joseph Sobran

Copyright © 2005 by the Griffin Internet Syndicate,
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