Friday, September 16, 2005

Column on Judge John G. Roberts, Jr.

[Always proof before publishing!]

Judge Roberts Conforms

Tibor R. Machan

It would have been welcome, indeed, although admittedly surprising, to
have a nominee to the US Supreme Court, especially to the post of Chief of
the court, turn out to be a principled person. The US Constitution is,
after all, a legal document that aims to lay out a set of internally
consistent, comprehensive principles that would guide justices in their
work to make sure that various legal bodies in the country stick to what
is constitutionally mandated, namely, restraining the growth of
government?s scope and power and respecting and protecting the individual
rights of the citizens.

Instead Judge John G. Roberts, Jr., a man of great intellectual acumen?of
judicial virtuosity if not of virtue?has caved in to the contemporary
pressure to be pragmatic, to see things not in terms of right and wrong
but ?maybe,? ?perhaps,? ?possibly,? and ?it all depends.? This move of
his, performed rather adroitly during the last day of his nomination
hearings before the Senate Judiciary Committee, was promptly hailed by The
New York Times, which selected, on Friday, September 16, 2005, his words,
?I'm not an ideologue" as its notable quote.

The Times? editors must have been beaming from joy when they heard the
Judge utter that sentence since it showed how influential their own kind
of thinking has become. Even a nominee of their nemesis, George W. Bush,
decided it?s best not to quarrel with post-modernism, wherein principles
have basically bit the dust and catch-as-catch-can thinking is the rule of
the day. It?s the triumph of the philosophy?or, rather, anti-philosophy?of
?the living constitution,? a doctrine that construes the role of justices
to be that of moral inventors, second guessers, situational legal scholars
and certainly anything but loyalists to the American constitution.

No one in his right mind would argue that the original constitution of
the United States of America was flawless. It was flawed by, among other
things, internal inconsistency?all the while it listed various rights
retained by the people and the states, including unenumerated ones, it
also empowered the federal government in ways that would in time get out
of hand and produce the Leviathan we now have on hand. This, clearly,
needed to be corrected and justices who took their oath of office
seriously as their professional ethical guideline, would have gone about
straightening out the flaws, the inconsistencies, the lack of completeness
and comprehensiveness as they ruled on cases come to them.

But that doesn?t construe the constitution a ?living document??or, more
accurately put, a cancerous organism that has gotten out of control and
begun to devour its own essential substance and structure. No, that would
merely have acknowledge that like so many good human institutions, this
one also needs to be kept in line with its essential nature. Like good
physicians, the preservation and enhancement of those essential elements
would have been part of their goal, of guarding the constitution, of
protecting it.

Just keep in mind, please that the term ?ideologue? now stands for anyone
with principles, never mind what the principles are. So announcing that
one isn?t such an obsolete sort is basically to make the attempt to
appease those who wish for justices to flay about as the political winds
demand, never mind their oath of office of protecting the constitution,
its essential substance.

If you wish to know what that substance is, you could do much worse than
consult Professor Randy Barnett?s brilliant book, Restoring the Lost
Constitution, The Presumption Of Liberty (Princeton University Press,
2004). The subtitle telegraphs the main message of the work?the US
Constitution is a legal document the default principle of which is the
idea and ideal of individual liberty. And Barnett shows this to be so with
great skill?one wishes he were nominated and confirmed to the court,
instead of Mr. accommodation John G. Roberts, Jr., the one who shuns
seeming like an ideologue, like, that is, someone with principles.

It?s not, of course, only Judge Roberts? character flaw, this embrace of
non-ideological approach to America?s law of the land, this jettisoning of
principle in favor of, well, being hailed by The New York Times as good
boy. It is also the character flaw of most of the senators, if not
all?because they, of course, wish to be left undisturbed by constitutional
concerns in their own power grabbing. It?s the flaw of most of the current
Justices, barring, perhaps, Clarence Thomas. But ultimately it is also the
character flaw of much of the American citizenry. They, after all, send
these senators to Washington and bear the responsibility for the

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