Jewish World Review March 9, 2005 /28 Adar I 5765
Upholding Kennedy's brain
Imagine you were asked to protect, uphold and defend the framfra of the United States of America. Or ask yourself, What if you were appointed to faithfully execute the queenestray of the land?
You'd be forgiven if, before holding up your right hand, you asked, "Uh, what's a framfra?" or "Could you explain what a queenestray is?" After all, you wouldn't want to take an oath that required you to kill puppies or watch Carrot Top movies. Mature, sensible people generally don't agree to obligations they don't understand.
But that is precisely what our elected and appointed leaders are asked to do today. When taking office, they swear an oath to protect, defend and enforce the Constitution of the United States. Yet it is becoming more and more difficult to say exactly what that means. Sure, on one level, anybody can read what the Constitution says. But, apparently, knowing what it says doesn't necessarily mean we know what it means.
At least, five justices on the Supreme Court don't know what the Constitution means. Earlier this month, as you no doubt heard, the high court outlawed executions of juveniles under the age of 18. The policy of banning juvenile executions may or may not be sound, but the reasoning that got the justices there was and I want to be delicate here un-American.
This isn't a reference to anything so exciting as their patriotism. Rather, their reasoning is literally un-American at times. Justice Anthony Kennedy who seems to be envious of Justice David Souter's status as the most disappointing Republican appointee writes, "It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty."
Why? Why is that proper? I truly have no idea.
Perhaps Justice Ruth Bader Ginsberg knows? In a speech in 2003, Justice Ginsberg openly expressed her hope that America would discard its "Lone Ranger" attitude when it comes to interpreting get this our own Constitution.
Justice Sandra Day O'Connor another perennial contender to unseat Souter in the most disappointing justice category predicts that we "will find ourselves looking more frequently to the decisions of other constitutional courts." Globalization is creating "one world," she explains, and the future challenge for the court will be to figure out how "our Constitution" "fits into the governing documents of other nations."
Justice Stephen Breyer outdoes them all. He's invoked the rulings of the supreme courts of Zimbabwe and India and the Privy Council of Jamaica to support his rulings. "These are human beings called judges who have problems that are similar to our own," he once said, by way of explaining his philosophy. "Why don't I read what he says if it is similar enough?"
Perhaps because what other judges do and say is of no relevance human beings though they may be. Perhaps because looking abroad for rulings that support your own predilections suggests that you cannot find precedent here at home to support your case? And just maybe citing foreign courts is a slippery slope from which there is no return. Once you start fishing for convenient rulings from the Supreme Court of Zimbabwe, it's clear that you will look anywhere and use any rationale to rule as you see fit, regardless of what the law, precedent or the Constitution actually say.
This is the real problem, and the fishing expeditions for friendly decisions abroad are merely a symptom. We have gotten to a point where on the major issues of the day liberal elites and their fellow-traveling justices cannot tolerate the idea that a good law can be unconstitutional or that a bad law can actually be constitutional.
In 1989 Justice Kennedy signed on to a ruling that considered the standards he used this month to be "absurd" and/or "irrelevant." He rejected "the contention … that the sentencing practices of other countries are relevant" in 1989. In 2005 he said "it is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty." Kennedy says that times have changed and there's a national consensus for banning juvenile executions. Leaving aside the tendentious math he invokes to find this "consensus" on the issue at the state level, if there's a national consensus, why bring up the "international" consensus against the juvenile death penalty?
The salient fact isn't that times have changed. It's that Kennedy has. He's "grown" in the job, welcome news to the editorialists, academics and European sophisticates he seems so keen to please.
Nonetheless, if the plain meaning of the Constitution can change as Justice Kennedy's mind changes, then the meaning of the Constitution is not to be found in its text or in precedent. It's not even to be found in the opinions of the no doubt Solomonic Jamaican Privy Council. No, the meaning of the Constitution does not exist at all outside the cranium of whichever justice provides the swing vote. Since what is in Justice Kennedy's mind is unknowable, we're back to the question: How can someone take an oath to defend the Constitution if he doesn't know what the Constitution is? Or are they taking an oath to Justice Kennedy?
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