Mainstream extremism: dismantling our Constitution

As the final vote in the Senate on Elena Kagan’s nomination to the US Supreme Court draws near, there’s little doubt that she will be confirmed, given the Democrats large majority.  But it will be a missed opportunity if Senate Republicans don’t use the debate to make some larger points about the judiciary and the size and scope of our government.

The problem is that when it comes to the American judiciary, what once was extreme has become mainstream, and the views of government held by those who wrote and ratified our Constitution are today considered extreme and out of date.

So how did this happen?  It certainly wasn’t suddenly.  Instead, it has been a long and insidious process, routed in the old “progressive” political movement whose adherents changed their names to “liberals” when progressive became a dirty word, and have now changed it back.  But this weed by any other name would smell as bad.

It was the progressives who determined that our Constitution was a “living” document, (or that it needed to be), when it became obvious that much of the way in which they wished to change government’s relationship with the people would be opposed by those same people.  In other words trying to change things via the amendment process wasn’t going to work.  But with a “living” Constitution, its words could eventually be twisted to mean anything.  And so they have.

But in order to make this happen, they needed judges as co-conspirators.  And as more judges adopted the theory of the living constitution, what was once an extreme idea has taken over and become acceptable “mainstream” thought.  Of course “mainstream” means our elite political leadership, the liberal media and academia. 

This is the same mainstream that Elana Kagan adheres to.

In recent times, Presidents have gone out of their way to stress that they don’t have “litmus tests” for their judicial nominees, but in reality it’s high time that we indeed had some litmus tests.  It’s time to toss the notion that nominees can’t answer serious questions about their views of the Constitution into the dustbin of history.

Do they believe that the Constitution has a fixed meaning that can’t be altered without direct amendment?  What do they think of the Tenth Amendment.  What would they consider the limits of Congress’ power under the Commerce Clause?  No plea that they would be pre-judging cases if they answered such questions should be tolerated.

If we’re going to invest the Supreme Court with supreme power over what the Constitution means, a job description not given by our Founding Fathers, then it’s certainly in our best interest to know just what nominees to the court think about such issues.

Oddly enough, Elena Kagan herself endorsed such an idea just a dozen years ago.  She commented that the Senate’s Supreme Court confirmation hearings were a farce that did little to offer the public a sense of what judges believed.  She wrote that such hearings are “a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis.”

Kagan advocated that senators insist “on seeing how theory works in practice by evoking a nominee’s comments on particular issues – involving privacy rights, free speech, race and gender discrimination, and so forth – that the Court regularly faces.”

Of course now that’s she’s a nominee, she’s fine with being opaque on such issues.  And too many Senators (even some Republicans) are fine with it too.  All part of one big, happy “mainstream”.

The fact is that the mainstream has brought us to where we are today.  It has continuously pushed our living Constitution in a leftward direction, towards a bigger, more powerful central government with more control over the states and individual Americans.

Jefferson saw it coming. He wrote that, “the judiciary branch, is the instrument which, working like gravity, without intermission, is to press us at last into one consolidated mass.”

The whole point of having a written Constitution was precisely so everyone would know exactly what the supreme law of the land was, and that it couldn’t be changed without positive action of the people.  This, as opposed to wondering from day to day what sort of “living” version of the
law might evolve outside of our control.

Can anyone of serious mind actually argue that ObamaCare would not have been deemed unconstitutional (much less passed) 200 years ago?  So what changed?  Put simply, the personnel; and as Ronald Reagan used to say “personnel is policy”.  Until conservatives get serious about enforcing some standards on judicial personnel we will continue to be cursed with a living Constitution that constantly changes to suit liberal political ends.

All across America today there is a growing political movement that is dedicated to reducing the size, cost and scope of government by adhering to our Constitution’s original ideals.  In other words, it’s an extremist movement by the standards of today’s mainstream.

If Republican leaders are serious about the GOP being the channel for this movement, then Republican Senators should use Kagan’s nomination as an opportunity to take a firm stand in favor of this “extreme” old view of government.