On the Court, Leftist Justice vs. the Rule of Law
”Elections have consequences,” said Barack Obama upon becoming president. Among those consequences is the ability of any president to appoint justices of the Supreme Court, as well as a great many other federal judges, based on criteria rational or irrational, honorable or dishonorable, or no criteria other than flipping a coin or tossing a dart at a board festooned with the names of candidates.
On Dec. 12, the consequences of the election of Mr. Obama were illuminated in stark relief on Fox News Sunday during Chris Wallace’s interview of Supreme Court Justice Stephen Breyer, currently hawking his book Making Our Democracy Work. Wallace wisely questioned Justice Breyer on the Second Amendment. His answers and evasions were illuminating -- and frightening.
Justice Breyer suggested that the primary job of a Supreme Court justice is to determine the values of the Founding Fathers. Breyer suggested that his second concern was to examine history, with the majority opinion of historians, perhaps, considered to rule. He did ultimately allow that judges should consider such matters as the the actual text of the Constitution and precedent, but Breyer's answers to Wallace’s questions revealed his belief that the text and its clear meaning should be ignored in favor of the approach of judges like himself -- who should “regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances.” Justice Breyer suggested that this was a “pragmatic” approach.
In explicating the text of the Second Amendment, Breyer said that it was not written to guarantee an individual right to keep and bear arms, but as a check on Congress nationalizing state militias. According to Breyer, James Madison included the amendment as an appeasement to the states to ensure that the Constitution was ratified. Breyer asserted that historians believe that Madison’s priority was “I’ve got to get this document ratified.”
Justice Breyer repeatedly brought up “liberty,” suggesting that the concept could not be understood unless one adopted his values-based approach to Constitutional interpretation. He also raised the argument that his approach was correct because the Founders did not foresee such things as the internet, television, and the telephone -- implying that his flexible approach (an approach which ignores the text and its clear meaning in favor of adopting contemporary, politically correct interpretations that advance desired social policies) is the only legitimate way for a judge to make decisions.
Justice Breyer wrote the dissenting opinion in the 2008 District of Columbia v. Heller case in which the majority affirmed the Second Amendment right of individuals to keep and bear arms, as the clear meaning of the text and the historical record support. However, Breyer believes that the opposite holding, his own, is correct, reflecting the values and intentions of the Founders. Referring to the act of judging, Breyer said: “The difficult job in open cases where there is no clear answer is to take those values in this document, what all Americans hold, which do not change, and to apply them to a world that is ever changing. It’s not a matter of policy, it is a matter of what those framers intended.” Breyer ignores the fact that it is language, the written word, that reflects, embodies, and explains values, and nowhere was language so carefully chosen as in the Constitution. In Breyer’s construction, the clear language of the Constitution is untrustworthy, confusing, and cannot be understood by the layman, but only apprehended by a values interpretation discovered and imposed by judges.
For Justice Breyer a complete ban on handguns in D.C is completely acceptable and reflective of the true values embodied by the Constitution. “We’re acting as judges. If we’re going to decide everything on the basis of history -- by the way, what is the scope of the right to keep and bear arms? Machine guns? Torpedoes? Handguns? Are you a sportsman? Do you like to shoot pistols at targets? Well get on the subway and go to Maryland. There is no problem, I don’t think, for anyone who really wants to have a gun.”
Because Supreme Court justices almost never consent to interviews, this interview is fascinating for a look at the “living, breathing document” wing of the Supreme Court. Its view of the Constitution is mere subterfuge for the view that the Constitution means whatever a liberal majority of judges want it to mean at a given moment. Because conservative justices generally view the interpretation of the plain text of the Constitution, supported by the historical record, to be the primary determining factor in understanding the intent of the Founders, the view espoused by Justice Breyer is clearly that of the left -- a left that views the Constitution not as America’s primary guarantor of liberty and democracy, but as an antiquated impediment to the imposition of their policies.
The majority decided Heller based on history, including the public and private writings of the Founders, and the plain text of the Second Amendment. One can hardly suggest that the term “the people” does not speak to individual rights in the Second Amendment, yet does so speak in the First, the Fourth, the Ninth and the Tenth Amendments. The Founders were very careful in their language in the Bill of Rights, clearly differentiating between the “United States,” the “States,” and “the people.” That a justice of the Supreme Court would employ linguistic sleight of hand to avoid acknowledging this fundamental understanding of basic American rights and of the construction of the Constitution is deeply disturbing.
The values based approach advocated by Breyer is nothing more than progressive activism cloaked in pseudo-legalistic jargon. If, ultimately, the intentions of the Founders are to be determined based on a mystically derived understanding of their values rather than the clear meaning of the words they so carefully chose, the Constitution has no meaning. Wallace suggested that in following that approach, judges were acting as legislators. Justice Breyer brushed off Wallace’s obviously accurate observation.
Take for example, liberty, which Justice Breyer repeatedly suggested was a concept not easily understood. Should a majority of the justices hold that the fundamental value connected with it was freedom from fear or respect for order, what draconian police state measure would not be allowable, indeed, even mandated? Under Justice Breyer’s view, it is entirely permissible for entire sections of the United States to deprive citizens of the means to defend their lives, requiring a subway ride to a “free zone” such as Maryland -- not generally understood to be a bastion of respect for the Second Amendment -- for the merest exercise of a right most Americans consider theirs by birth. No doubt Justice Breyer would not be so quick to overturn Supreme Court precedent holding the police unaccountable for failing to protect the lives of individuals.
Justice Breyer’s comments on the scope of the Second Amendment are likewise very disturbing. Surely a justice of the Supreme Court knows that no right is unlimited? Surely he knows that there is no clamor for the keeping of torpedoes and similar weapons and that machine guns are the most tightly regulated class of firearms in America? Is Justice Breyer so isolated that he does not know that American gun owners understand that no right is unlimited, that they are among the most law abiding Americans, and that they accept reasonable regulation of genuine weapons of war such as those he so carelessly bandied about? Such matters are not wrenching, hair-splitting decisions about how many angels can dance on the head of a pin, but commonsensical issues decided and accepted long ago by most Americans. Is Justice Breyer so uninformed, or does he merely think so little of the knowledge and intellects of those whose “unwavering values” he seeks to identify and codify?
In the America of Justice Breyer, Americans would surely be denied the right to possess and employ the most common and effective means of protecting their own lives: handguns. Certainly more effective and potentially deadly weapons, such as shotguns and rifles, would also be banned. And because values are the primary criteria of constitutional interpretation for Justice Breyer, there can be no limit to the restrictions placed on liberty by activist judges because the actual text of the Constitution is not a curb on the understanding and identification of the values of the Founders in light of current political and social reality.
Mr. Obama has already succeeded in appointing a stealth anti-Second Amendment Justice, Justice Sotomayor -- who professed her absolute respect for the Second Amendment as a means of securing Senate approval, but voted against freedom in McDonald v. Chicago. In other words, she lied. Justice Breyer, by his own admission, views precedent as subservient to the divination of proper values. There can be little doubt that should progressives gain a Supreme Court majority, the Second Amendment would be quickly rendered null and void. Under such a court, could even a Constitutional Amendment clearly and explicitly, with no prefatory clause, confirming the right of each individual to keep and bear arms, and with crystal clarity specifying not only the types of allowed weapons but such matters as universal concealed carry, have any meaning? Such a court could and certainly would simply find that the values of the Constitution render it unconstitutional. This is not the rule of law, but lawlessness. If words truly have no plain meaning, how can anyone know what local, state or federal law is or is not valid until and unless the Supreme Court has ritually examined its entrails for “values”?
Elections do indeed have consequences, and Justice Breyer has done a public service in revealing America’s future should Barack Obama or anyone remotely like him be able to shift the balance of the Supreme Court away from the rule of law to the whims of “progressive” men. Is there any doubt that the individual mandate of Obamacare would be upheld, and if so, what would the federal government be unable to mandate? It would appear that the election of 2012 is far more important than many understand. More and more, it appears that individual, national, even civilizational survival may depend upon it.