Using the Constitution: Empathy & Wise Latinas or Impartiality?

This past week’s confirmation hearings for Obama Supreme Court Justice nominee Elena Kagan has once again brought contrasting Constitutional philosophies to the fore. In a nutshell, conservatives think Supreme Court Justices should be impartial umpires, while liberals think they should be empathetic super--legislators.

Conservatives ask: What are the conflicting rules (laws, interpretations, policies) at issue in the case, and how best to achieve the result most consistent with them? Liberals ask: What is the “right” thing to do, what is the best result, in light of various goals of righting past societal wrongs, protecting the “oppressed”, and moving society to a “fairer” place consistent with the liberal focus on gender, racial, class, and sexual identity?; this is Obama’s articulated “empathy” standard for SC justices.

New Obama-appointee SC Justice Sotomayor evidenced this view with her now-infamous comment: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life." Question for Sotomayor: does the Constitution have different meanings and so different outcomes for a latina woman compared to a white male? Is an apartment lease contract unenforceable by a white landlord because the defaulting tenant is a latina and, per the liberal view, a member of an oppressed class?

We have a written Constitution whose clauses have finite meaning and are not aspirational principles or general guidelines. There is no point to having a written Constitution if the words don’t mean what they say or if they can mean what they in fact don’t say. But liberals need an expansive judicial power unmoored to the Constitution’s written words (a “living” Constitution) because they been unable to achieve their societal aims entirely through legislative and executive means.

Roe v. Wade is a perfect example, wherein a majority of Justices created a federal Constitutional right to an abortion that cannot be honestly found in the clauses of the written Constitution, hence the talk of “penumbras” and such; one can certainly be “pro-choice” and nevertheless find the majority holding in the case corrosive to a Constitutional republic based on written laws. After saying such one day, I’ll never forget the emotional response I got from a very bright attorney: “So you want to go back to the days of dangerous back-alley abortions!?” For some, the written Constitution is just a procedural hurdle – one must do what is “right”, and so the end sometimes justifies the means. Have I no empathy for women, don’t I want the “right” outcome in the case? But the history of liberty is in large part the history of fair and honest legal process. An anti-impartiality “empathy” standard for deciding the competing issues in a case destroys that foundation.

Here’s a current example: liberals are relying on the Commerce Clause as the basis of federal power to require every American to purchase private health insurance from a private company. No honest person actually thinks such a federal power can be found anywhere in the Constitution, including the much-abused Commerce Clause. But Obamacare supporters think the individual insurance mandate is a necessary component of their national health care plan and therefore is the “right” thing to do. The approach: figure out what’s “right” and then find some Constitutional language, perhaps a “penumbra” or “emanation”, that will seemingly justify it to a mostly inattentive and trusting public.

Ramesh Ponnuru discussed this Constitutional interpretation in a post (link) yesterday at National Review Online titled “Umpires vs. Liberals”, and concluded with a very interesting point. He asks: “If the Constitution merely lays out several “values” to which we aspire, and does not supply the materials for determining how to resolve conflicts among these values in cases where such conflicts arise … then why should unelected lawyers instead of legislators decide how to resolve these conflicts?” The answer for liberals must be: voters, the “People,” are too unenlightened (false consciousness and all that, expressed by one exasperated liberal a few years ago as “What’s the Matter with Kansas?”) to reliably elect correct thinking legislators, and so an enlightened ruling elite, unelected by design yet ostensibly empathetic to their interests, must make the important decisions for them. A very different view of governance than that of the American system we’ve inherited.

John M Greco