What Fundamental Rights?

August 22, 2005

As the Roberts Supreme Court confirmation hearings approach, it occurs to me that what we need is more than just a vetting of Judge Roberts’ judicial philosophy. We’re way overdue for a candid national debate, centered in the Senate, about the proper role of the judiciary in our constitutional framework.

Senators, in their advice-and-consent role, routinely put judicial nominees on the hot seat about their views on particular constitutional issues, but what about the views of the senators themselves? Who ever asks them what they think about the separation of powers or the doctrine of federalism?

I have this fantasy that some enterprising conservative senator could use the Roberts hearings as an opportunity to initiate this important discussion. Then, instead of just viewing potential Supreme Court justices as policy-making agents to be supported or opposed based on their political views, we could delve into the more relevant issue of constitutional governance.

Perhaps a few days before Judge Roberts submits to his obligatory inquisition and show trial, someone like Sen. Orrin Hatch could call for a senate discussion on judicial philosophy and the constitutional role of the courts. The public is entitled to know which senators foster judicial tyranny by insisting that the courts have the power to rewrite the Constitution.

Wouldn’t it be instructive, for example, to ask Sen. Barbara Boxer to justify her requirement that Supreme Court nominees promise to preserve certain “fundamental rights”? Perhaps she could first explain what she means by “fundamental rights.” Are these rights that are so rooted in our national tradition that there has always been a consensus as to their existence and indispensability?

How about an unborn child’s right to life? Fundamental enough for you? Or, would Boxer be talking instead about a mother’s right to abort her child on demand?

If the right to an abortion were fundamental, wouldn’t there have been a consensus for it among the individual states long before Roe v. Wade in 1973? But Justice Scalia, in his opinion in Planned Parenthood v. Casey, reminds us that the opposite is true. Scalia wrote, “the long-standing traditions of American society have permitted [abortion] to be legally proscribed.” As such, the right couldn’t possibly be considered fundamental in any real sense of that word.

What Boxer and company really mean by “fundamental rights” is rights that have been written into the Constitution by activist judges precisely because they weren’t fundamental enough to have been included in the original Constitution or its amendments or uniformly passed into law by federal or state legislative bodies. They mean rights whose continued existence depends upon Supreme Court justices affirming erroneous precedent established by their activist predecessors.

This is much more serious than it sounds. In demanding that would-be justices uphold precedent that has no grounding in the Constitution, Boxer and her like-minded colleagues are trying to extract a commitment from them that they will conspire to disenfranchise the people.

Though they’re always boasting that most Americans support abortion rights, these senators obviously don’t want to take the chance that Roe will be reversed, because state legislatures may decide to outlaw or more strictly regulate abortion. Thus in the name of protecting “fundamental rights,” the will of the people and the integrity of the Constitution, they circumvent the will of the people and undermine the Constitution.

In a nutshell, that’s what’s so sinister and insidious about this “progressive” notion that the Constitution is an evolving document. When judges can make the Constitution say whatever they want it to without regard to the original understanding of those who signed and ratified it, the fixed basis upon which all our rights depend degenerates from concrete to sand. Our constitutional rights are no more secure than the whims of the unaccountable majority of the current Supreme Court.

I just wish that one time one of these sanctimonious senators started lecturing a nominee about a woman’s fundamental “right to choose,” another senator or the nominee would have the courage to throw back in his face the sanctity of the Constitution. I wish that one time a ranting senator began railing about the potential loss of “fundamental rights” someone would point out that the extraconstitutional method for creating mythical fundamental rights places in jeopardy our entire constitutional scheme of rights and liberties.

Instead of, or at least preceding, the inevitable rash of pseudo-indignant sermons from constitution-disrespecting senators about “fundamental rights,” we would be better served by a national dialogue on the fundamental importance of preserving the original understanding of the Constitution.