Joseph Sobran’s
Washington Watch

A Blank Paper

(Reprinted from the issue of September 18, 2003)

When Miguel Estrada withdrew his name from consideration for a federal judgeship during a bitter confirmation battle, Sen. Ted Kennedy crowed that the Constitution had been saved from the extreme right.

The truth is that only the extreme right understands the Constitution, and Estrada didn’t even qualify as a member of it. He was merely a moderate conservative.

Still, even that was too much for the Democrats. They have shown that they will fight tooth and nail against any high-level judicial nominee who isn’t a liberal. They understand the stakes.

Controlling the interpretation of the Constitution is vital to the leftist agenda of expanding the federal government’s power. That means keeping the federal judiciary as liberal as possible and treating the U.S. Supreme Court’s liberal legacy as sacrosanct. Any rollback could be fatal. This is American liberalism’s version of the Brezhnev doctrine: “What we have, we keep.” One of its deepest fears is a return to strict construction of the Constitution and to the severely limited government that is the true American heritage. An activist liberal judiciary is indispensable to the centralization of power.

Contrary to the confused and confusing mythology of the civics textbooks, the Supreme Court has never been much of a “check” on the other two branches of the federal government. In recent decades it has chiefly served to overrule state legislatures — as it did most boldly in declaring all 50 states’ abortion laws (even the most permissive) in violation of the Constitution.

Of course the Constitution says nothing about abortion, an unmentionable subject when the Constitution was drafted. But, using its own recent liberal precedents, the Court found “penumbras” and “emanations” and stuff that led logically — as the Court understands logic, that is — to the virtual incorporation of the Playboy philosophy in the Constitution, under the guise of an alleged right to “privacy.” This delighted feminists as well as Hugh Hefner, as well as the American Civil Liberties Union, and by now liberals in general regard abortion as a “fundamental” right.

For all their complaining about judicial activism, conservatives have never grasped the importance of the judiciary, and have never fought over it with the zeal of the liberals. If they had, they would have at least talked about impeaching the justices who had foisted abortion on demand on the entire United States.

But throughout the 30-year battle over legal abortion, I have seldom if ever heard even the most ardently pro-life conservatives mention impeachment. It is taken for granted that the courts’ job is to “interpret” the Constitution, and that even their most arbitrary and outrageous rulings must be accepted as legitimate, even when they are not “interpretations” at all, but the imposition of the courts’ preferences in the name of law. And so, to this day, in the bloody battles over control of the courts, all the blood spilled is that of conservatives (or, as in Estrada’s case, merely relative conservatives).
 
Jefferson Was Right

In the Kentucky Resolutions of 1798 — one of the most important and prophetic documents in American history — Thomas Jefferson made a simple and irrefutable argument. The Constitution is designed to define and limit the powers of the federal government. But if the federal government (including the federal judiciary) is the sole, exclusive, and final authority to say what the Constitution means, it can be expected to rule in its own favor, constantly expanding its own powers and usurping the powers reserved to the states.

In short, if the federal government can define the extent of its own powers, we may as well not have a written Constitution, because its whole purpose has been defeated.

Jefferson was exactly right. It took a while before the Supreme Court assumed the power he feared it would, but it finally happened, and on a scale that would have astounded even Jefferson. In 1973 the Supreme Court made its Grand Usurpation, stripping the states of their authority to protect human life itself.

The Constitution had been virtually abolished by “interpretation” — turned into what Jefferson called “a blank paper by construction.” Anyone who thinks Jefferson would be a liberal in our time, by the way, should consider that he recommended that sodomy be punished by castration. He was especially suspicious of claims of “implied” powers in the Constitution (as in his famous debate with Alexander Hamilton over the issue of a national bank).

It doesn’t take much imagination to guess what Jefferson would think of the U.S. government today, when its supposed “implied” powers are virtually infinite and nobody bothers measuring them against the powers expressly granted. When the federal government claims a new power nowadays, nobody even asks just which clause of the Constitution “implies” it. In practice, the idea of implied powers means that the government does whatever it pleases.

The Constitution delegates a few specific powers to the U.S. government, reserving all other powers to the states and the people. It is these reserved powers that were meant to be well-nigh infinite; they were assumed to be too many and too various to list. Yet these powers have constantly shrunk, and we never hear of “implied” powers of the states. The trick of claiming unlisted powers by implication is one only the federal government is allowed to play.

This is a total inversion — and perversion — of the constitutional design. I do not say this merely as a matter of plain historical fact; it is the obvious and inescapable meaning of the text of the Constitution itself. As James Madison put it, the powers of the federal government, being listed, are “few and defined”; the powers remaining with the states, being unlisted, are “numerous and indefinite.”

When the right of the sovereign states to withdraw from the Union was denied, the states lost their ultimate defense against federal usurpations. A new biography of Jefferson skates over the great Kentucky resolutions, except to remark that his arguments “brought him dangerously close to secessionism.”

I had to laugh. Apparently the author has never noticed that Jefferson explicitly approved the right of secession on several occasions. It was he, after all, who wrote the most famous secessionist document in history: the Declaration of Independence, proclaiming not one but 13 “Free and Independent States.” (His grandson George Wythe Randolph would later serve as a Confederate general and secretary of war!)

Jefferson would surely have agreed that Roe v. Wade justified secession. How far we have departed from his philosophy — and from constitutional government.


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Joseph Sobran