Roe v. Wade seems to be the heart of the matter to both sides. In the view of many of those pro and those con, it is the decisive issue underlying the matter of Judge Roberts' fitness to serve on the High Court.
They are all wrong. It isn't.
The paramount issue that towers above all others is the question of Quo Vadis America? We are at what may well be a final crossroads, where taking the left fork will continue carrying the nation away from our constitutional roots, while taking the right fork will take us back to the rule of law as enshrined in that Constitution.
That is what it all comes down to: Does Judge Roberts subscribe to the view that the Constitution is a "living document" that can be read according to the personal view of the reader, or read as rule of law set in stone - a document that means exactly what it says and not what the reader wants it to say.
If it's a living document, Roe v. Wade can be seen as a reflection of the needs of the time; if it is a document that means what it says and nothing else, Roe v. Wade is simply one abomination born of a permissive age that must be eliminated.
Just about everything he has said and done in both his public and private lives seems to suggest that he is a fervent advocate of the latter conviction, but I don't really want to go there. It isn't what he may or may not do as a justice of the Supreme Court that concerns me vis-a-vis Roe v. Wade, but whether or not my fellow Americans understand how vital it is to the survival of this nation, as a bastion of individual liberty rooted in individual responsibility, which fork in the road we choose to take.
It's really very simple. Do Americans understand exactly what the founding fathers were up to when they sat down and fought over every line of the document they were creating? Do we have any idea of their mind-set when they went about the job of devising a set of rules that would enable liberty to survive here down through the ages?
These were extraordinary men, most of them classically educated and thoroughly familiar with the history of the Western Christian civilization from which they sprung. And most important of all, they understood, with what had to be divinely inspired but also commonsensical, down-to-earth concepts, the nature of man and the nature of government. And they set about creating a system of self-government - a thoroughly radical notion at the time - based on what those two concepts taught them.
They understood that both government and mankind have the capacity to do good and the capacity to do evil - and it was that knowledge that led them to seek a means whereby the capacity to do good would be both encouraged and protected, while the capacity to do evil would be restrained to the fullest extent possible.
They saw man as being capable of passions, and they devised a means of keeping those passions in check. They saw government as capable of being drawn toward tyrannical excesses, whatever its motives, and they devised means of limiting its powers to protect the citizenry from tyrannical rule.
They had more than an instinctive understanding that, regardless of the sincerity of their motives, good men can become bad men when they develop the conviction that they have a superior understanding of what is good and what is bad for their fellow men, and they took steps to prevent such people from prevailing in this elitist misconception.
For over two centuries it was generally understood that the Constitution means what it says. No two ways about it: If the Constitution declares that a hole is round and not square, no amount of sophistry will square the circle.
This of course restrains those who would define the rule of law as being subject to the temper of the times. Unable to break the chains wrapped around government by the founders, they declare the chains to be outmoded and non-existent and out of touch with the zeitgeist which they believe must be supreme because it is reflective of the present moment, of man's current passions, likes and dislikes. So the chains are broken or at least simply ignored.
This is the philosophy behind the "Living Constitution," the notion that it must be read according to current circumstances and opinions, and not as it was meant to be read in the late 18th century. Needless to say, the idea betrays a vast ignorance of the unchanging nature of man and the unchanging nature of government, which George Washington may or may not have rightly said is, at its very heart, nothing less than force.
The nature of man at the dawn of history was no different from the nature of 21st-century man. So too with government - it has always moved in the direction of coercion. Witness, for example, the transition of Rome as a republic to Rome as an empire under the thumb of an all-powerful emperor.
Attempts to see mankind as an evolving species, ever changing with the times, ignore a few thousand years of history that show that regardless of our technological might and sophistication, we remain pretty much the same old apple-munching Adam. And no matter how far we have come in developing governmental systems ostensibly designed to meet the needs of its subjects, governments continue to strain to emulate the gentle rule of Caligula.
Government is what it has always been: force. And force is what force does - push forward, growing in might and power. Only the rule of law under an unchanging Constitution can protect citizens from becoming subjects.
In recent years, unable to ram their socialist egalitarian laws down the throats of the American people through the constitutional legislative process, the left has managed to create a judiciary loaded with like-minded jurists willing to make the laws the American people don't want through rulings from the bench.
At this point I have to turn to the wit and wisdom of Justice Antonin Scalia, a master of what is known as originalism. His colleagues Chief Justice Rehnquist and Justice Thomas are as committed to the originalist doctrine as is Scalia, but nobody on the High Court can match Antonin Scalia when it comes to expressing this judicial philosophy clearly, distinctly and with great verve and great humor.
Writing in First Things magazine, Justice Scalia once stated that "the Constitution that I interpret and apply is not living but dead - or, as I prefer to put it, enduring. It means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted."
Speaking to a meeting of scholars, staff and the media at the Woodrow Wilson Center on March 23, 2005, Justice Scalia explained his approach to constitutional jurisprudence, blasting the idea that the Constitution is a living, evolving document. Said Scalia, "The Constitution is not a living organism, for Pete's sake; it's a legal document and, like all legal documents, it says some things and it doesn't say others."
According to a report of his address published by the Woodrow Wilson Center, Scalia noted that the notion of the "living Constitution" is only about 50 years old, and he added that he fears what such evolution in legal thought might bring: "What it is should be troublesome to Americans who care about a Constitution that can provide protections against majority rule."
He added: "The Bill of Rights is meant to protect you and me against the majority. My most important function on the Supreme Court is to tell the majority to take a walk."
Describing himself as an "originalist" - that is, a judge who interprets the Constitution exactly as the framers intended - and insisting that this does not mean he is a strict constructionist, he said: "I do not think the Constitution, or any text, should be interpreted either strictly or sloppily. It should be interpreted reasonably. I do believe you give the text the meaning it had when it was adopted."
The Constitution, he said, does not evolve. "If it's a Constitution that changes ... you could give it whatever meaning you want and when future necessity arises, you'd simply change the meaning. ... The Constitution didn't used to mean that, but it does now."
He warned of the dangers of rewriting or redefining a constitutional text rather than interpreting it in its original form. "At that point, you've rendered the Constitution useless," he said. "The worst thing about the ‘living Constitution' is that it will destroy the Constitution."
"If you believe that the Constitution is not a legal text ... if you think the Constitution is some exhortation to give effect to the most fundamental values of the society as those values change from year to year, if you think that it is meant to reflect - as some of the Supreme Court cases say, particularly those involving the Eighth Amendment - evolving standards of decency that mark the progress of a maturing society, then why in the world would you have it interpreted by nine lawyers? What do I know about the evolving standards of decency of American society?"
Today, people talk about the need for justices who will interpret the text in a "moderate" way. "There is no such thing as a moderate interpretation of the text," Justice Scalia argued, asking, "Can you draw up a moderate contract?"
Justice Scalia denied that the idea of the living Constitution is a partisan one. "Conservatives are willing to grow the Constitution to cover their favorite causes" just as much as liberals are. He has dissented in cases that variously favored conservatives and liberals. "It has nothing to do with what your policy preferences are. ... I have my rules that confine me," Justice Scalia said. "When I find the original meaning of the Constitution, I am handcuffed."
Such an approach explains why he votes to uphold the right to burn an American flag, "even though I don't like to." He added, "Though I'm a law-and-order type, I can't do all the mean, conservative things I'd love to do to this society."
Some argue that a living document would lead to greater freedom, but Justice Scalia disagrees. He cited another recent Court case that examined the practice of permitting judges to make factual determinations before they sentence someone convicted of a crime. Justice Scalia agreed with the Court's holding that the practice violated the right to trial by jury.
"The living Constitution, like the legislatures that enacted these laws, would allow sentencing factors to be determined by the judge because all the living Constitution assures you is that what will happen is what the majority wants to happen and that's not the purpose of constitutional guarantees."
In his dissent in Planned Parenthood v. Casey, 505 U.S. 833, 981 (1992), He wrote: "The Court's statement that it is 'tempting' to acknowledge the authoritativeness of tradition in order to 'cur[b] the discretion of federal judges,' ... is of course rhetoric rather than reality; no government official is 'tempted' to place restraints on his own freedom of action, which is why Lord Acton did not say 'Power tends to purify.' The Court's temptation is in the quite opposite and more natural direction - towards systematically eliminating checks upon its own power; and it succumbs."
That's what the battle is all about. If Judge John Roberts is cut from the constitutionalist mold that produced Antonin Scalia, Chief Justice Rehnquist and Clarence Thomas, America will be embarking on the right fork of the road. That's all that matters.
I'll give the last word to George Washington. In his Farewell Address in 1796 he said: "If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield."
Amen!
Phil Brennan is a veteran journalist who writes for NewsMax.com. He is editor & publisher of Wednesday on the Web (http://www.pvbr.com) and was Washington columnist for National Review magazine in the 1960s. He also served as a staff aide for the House Republican Policy Committee and helped handle the Washington public relations operation for the Alaska Statehood Committee which won statehood for Alaska. He is also a trustee of the Lincoln Heritage Institute and a member of the Association of Former Intelligence Officers
He can be reached at phil@newsmax.com
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