There are few certainties in life, but one of those certainties is this:
Unless Sonia Sotomayor pulls out an Uzi and sprays the US Senate’s chamber with it, or gets run over by a bus outside that chamber, she will be confirmed as the US Supreme Court’s newest Associate Justice.
The “hearings” on her confirmation to that appointment have nothing whatsoever to do with the appointment or the confirmation, really. They’re just a demagoguery opp, a mating ritual as vivid and bizarre as anything you’ll ever see on The Discovery Channel. The Senators are peacocks strutting their plumes, apes beating their chests. The object of their visible affection isn’t Sonia Sotomayor — it’s you, in your role as prospective campaign donor or voter.
Like all such rituals, this one includes pro forma elements: The Senators invoke buzz phrases (“strict construction;” “original intent;” “judicial activism;” “living document”), then posture for the public in certain ways depending on how Sotomayor responds to those phrases.
Over and over, in so many ways, she must be induced to state that her dearest wish, her goal in life, is to “apply the law to the facts.” When she so announces, Democratic Senators respond with self-satisfied smiles, Republicans with raised eyebrows signifying disbelief, each the better to arouse the constituencies with which they hope to mate (or, more cynically, which they hope to screw).
In truth, given the size of the Democratic majority, only one question ever stood between Judge Sotomayor and confirmation. Her answer to that question — “will you at all times and in every respect proclaim and uphold the legitimacy of our power?” — was known long before the hearings began, else she’d have never been appointed in the first place.
But back to that mating ritual. I’m less interested in its participants than in its shibboleths:
“Original intent” and “strict construction” are fine, high-sounding concepts, and often useful ones even to anarchists, if only for the purpose of invoking adherence to rules which are allegedly binding on the state. I’ve yet to see the judge who pays them much heed in practice, however.
Even the most famous living advocate of “original intent,” Robert Bork (you saw him in a previous season of the show; he withdrew in the face of a less friendly panel) discards the whole concept without a second thought whenever it threatens to impose what he accurately describes as a “libertarian theory of jurisprudence.”
As for “strict construction” … well, let’s just say that anyone alive the last time the interstate commerce clause (to offer one major example) was “strictly constructed” by the US Supreme Court is now dead or at least very, very long in the tooth. As of the last time I looked (Gonzales v. Raich), even the most “conservative” justices agreed that Congress’s power to “regulate interstate commerce” extends to matters which are neither interstate nor commercial.
“Judicial activism?” A meaningless phrase, general used as a pejorative. Of course judges “act.” They judge. Their judgment is generally only construed as “activist” by politicians whose own “activism” has been impeded by it.
From the foregoing, it should be obvious that the Constitution is, in fact, a “living document,” reinterpreted at will for more than 200 years now whenever such reinterpretation has been required to support the desire of politicians to maintain a firm grip on, or extend the scope of, their power.
Could it really be any other way?The Constitution was written to provide minimal central governance for an agrarian and pre-capitalist mercantile society of 3 million, spread over 13 sub-polities clinging to the eastern seaboard of a continent.
As the population grew toward 300 million, scattered in 50 sub-polities over that continent and then some, “central” continually gained on and then surpassed “minimal,” in no small part due to the power of interpretation of the Constitution becoming vested in a Supreme Court located at, and appointed by those in charge of, the “center.”
Whether or not the game was intentionally fixed is debatable; that its outcome was fore-ordained should be obvious. The Constitution is indeed a “living document,” kept in a cage, fed a high-fat diet and occasionally trotted out for ostentatious public display. As a guarantee of your rights, it has become less than meaningless — its sole function these days is to legitimize your subjection.
Put not your trust in princes? Sure thing. Neither put your trust in constitutions, nor in the political appointees hired (by those in power) to “interpret” those constitutions.