Notes From Babel

Divine Sledge Hammer

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Justice Scalia has a noteworthy opening to one of this terms Supreme Court cases, Padilla v. Kentucky:

In the best of all possible worlds, criminal defendants contemplating a guilty plea ought to be advised of all serious collateral consequences of conviction, and surely ought not to be misadvised. The Constitution, however, is not an all-purpose tool for judicial construction of a perfect world; and when we ignore its text in order to make it that, we often find ourselves swinging a sledge where a tack hammer is needed.

This reminded me of the following passage from Robert Bork’s The Tempting of America:

Once, after I had given a talk on the Constitution at a law school, a student approached and asked whether I thought the Constitution prevented a state from abolishing marriage.  I said no, the Constitution assumed that the American people were not about to engage in despotic insanities and did not bother to protect against every imaginable instance of them.  He replied that he could not accept a constitutional theory that did not prevent the criminalization of marriage.  It would have been proper to respond that in any society that had reached such a degenerate state of totalitarianism, one which the Cambodian Khmer Rouge would find admirable, it would hardly matter what constitutional theory one held; the Constitution would long since have been swept aside and the Justices consigned to reeducation camps, if not worse.  The actual Constitution does not forbid every ghastly hypothetical law, and once you begin to invent doctrine that does, you will create an unconfinable judicial power.

There is both truth and wisdom in this. There are all sorts of silly things that men might try to impose on his fellows.  And on the one hand, I believe there is some merit to the view that something we call “law” must actually abide by some general definitional standard in order to be rightly called such, and thus cannot be entirely arbitrary.  But for the most part, to say that the Constitution would prevent lawmakers from doing something like making all marriage illegal, or some such silly thing, expands the document beyond its rightful scope.  Our Constitution is a tool for reasonably like-minded people with a modicum of respect for traditions, personal virtue, and sensible laws.  It is not an instrument to corral miscreants and fools under a banner of order they implicitly reject.

Of course, in light of the pending challenges to Obamacare and the individual mandate, I have to point out that the Court’s interpretation of the Commerce Clause is the reverse problem, the abdication of judicial review as to a critical limiting clause of the Constitution.  The reason for the Court’s initial abdication in Wickard v. Filburn, a reaction to FDR’s court-packing threat, is perhaps understandable.  The Court’s continued playing out of a 60 year old game of Constitutional telephone, however, is less so.

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Written by Tim Kowal

March 31, 2010 at 10:19 pm

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