It will be hard to find a justice more liberal

Last week United States Supreme Court Justice John Paul Stevens announced his intention to retire — 34 years too late, but still an opportunity for improvement.

Stevens was appointed by President Gerald Ford in 1975 as part of his litany of errors, which included finalizing the surrender of Eastern Europe to the Soviets with the Helsinki Accords and his advanced economic doctrine of the WIN button (Whip Inflation Now!).

As questionable a decision-maker as Stevens has been, he was no worse than his predecessor, William O. Douglas, a hyperactive progressive appointed by Franklin Roosevelt. His 36-year tenure combined with the nearly 35 years of Stevens’, gives that seat on the bench almost 71 years of monkeying around with the Constitution in a way that would make James Madison bug-eyed in alarm.

It’s then with a degree of wonder one listens to commentators on cable news networks discuss the president’s opportunity to further his agenda with this appointment. One has to wonder who would be better to further his agenda, since it will be difficult to find someone further to the left of the last two appointees.

Even more interesting is the president’s stated criteria of wanting to find someone for the job who will consider the “effect of law on the everyday citizen.” Sounds pretty good, except that it is absolutely not what a Supreme Court justice is supposed to consider. That job belongs to Congress.

There is nothing in the Constitution given to the Supreme Court or any other federal court that allows them to factor in the effect, spirit or even the wisdom of legislation.

Alexander Hamilton, writing in the Federalist papers about the Constitution, said, “In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution.” In other words there was to be no wiggle room for future justices to say what they thought the Constitution should do, outside of what it said, and no inference to be drawn from those things left unsaid.

It’s not that President Obama isn’t familiar with the Constitution. He has studied it quite thoroughly, in much the same way that a demolition engineer studies an old building that he finds in his way.

Justices like Stevens and presidents like Obama tend to view the Supreme Court as a sort of super legislature — molding acts of Congress into results it prefers by ferreting out previously unknown rights that require government intervention and by selectively applying limits on government power.

The framers of the Constitution were aware of this possibility and regarded it as the single greatest danger in the courts.

Madison, writing in the Federalist papers, quotes philosopher Montesquieu in saying “were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator.”

The reason this has come about today really lies with the other two branches of government. They have increasingly seen the Supreme Court as a vehicle to achieve controversial results in the guise of judicial thought and to avoid political consequences by placing the blame on unelected and lifetime-serving justices who have been nominated to achieve those very results.

So, while it’s important to carefully examine the nominees for the bench, it’s probably more important to change Congress and the president if you want to ensure strict adherence to the Constitution.

Rick Wagner offers more thoughts on politics at his blog, The War on Wrong, which can be reached through the blogs entry at


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