December 26, 2010

The Constitution ... must be "Darwinian"

This was written back in 2004. I recently found it in my odds and ends box...

The Claremont Institute - Defending Thomas:

...Savvy liberals like Reid are right to be more concerned with Thomas than Scalia because Thomas' natural-law jurisprudence represents the greatest threat to the liberal desire to replace limited, constitutional government with a regulatory-welfare state of unlimited powers.

Thomas is one of the few jurists today, conservative or otherwise, who understand and defend the principle that our rights come not from government but from a "Creator" and "the laws of nature and of nature's God," as our Declaration of Independence says, and that the purpose and power of government should therefore be limited to protecting our natural, God-given rights.

The left understands that if it is to succeed, these principles of constitutional government must be jettisoned, or at least redefined. Thomas' recourse not only to the text of the Constitution but specifically to the founders' natural-law defense of constitutional government is fatal to liberalism's goal.

The most sophisticated and enduring critique of U.S. constitutional government was first made by Progressive-era liberals at the turn of the 20th century. Their main charge was that the Constitution was old and outdated and therefore irrelevant to modern times and modern problems. Woodrow Wilson, for example, insisted that unlike the physical universe, the political universe contains no immutable principles or laws. "Government ... is a living thing ... accountable to Darwin," explained Wilson. The Constitution, therefore, must be "Darwinian" as well—it too must grow and evolve.
From the liberal view, liberty cannot be a natural right, protected by a government of limited powers, because there are no natural rights. As liberal political scientist Charles Merriam explained in 1920, the "natural law and natural rights" of the founders had been discarded by intellectuals "with practical unanimity." Instead, "the state ... is the creator of liberty."

Bigger government means more liberty, not less. "It is denied," Merriam concluded, "that any limit can be set to governmental activity," and therefore the Constitution's original intent, which limited government power, "no longer seems sufficient."

The liberal critique of the Constitution has been repeated so long and with such intensity that it has become orthodoxy in our law schools, courtrooms and legislative halls. By 1986, liberal Justice William Brennan could easily dismiss the Constitution out of hand because it belonged "to a world that is dead and gone."

Before Anita Hill took the spotlight, the most controversial part of Thomas' confirmation hearings in 1991 stemmed from allegations that he had invoked the n-word—the natural law. Members of the Senate Judiciary Committee hardly knew how to respond, so alien was the founders' vocabulary. Perhaps this is why Reid finds Thomas' opinions "poorly written."

A generation of law students and politicians has been trained in "legal realism," which is nothing but liberal contempt for the Constitution dressed in academic garb. For liberals who believe rights come from and can be revoked by government and judges, a high court justice talking about natural rights is an embarrassment.

The size, scope and purposes of our government are no longer anchored in and limited by our Constitution. For conservatives who want to restore limited government, their first order of business is to restore the authority of the Constitution's original intent. The American people need to be reminded of the source of their rights and persuaded that limited government is good; that the principles of the Constitution—which are the natural-law principles of the Declaration of Independence—are timeless, not time-bound; that without those principles, the noble ends set forth in the Constitution's preamble can never be achieved.

Of the current Supreme Court justices, only Thomas has offered a defense of the natural-law principles of the Constitution, a defense that nearly cost him a seat on the court and continues to elicit the kind of disdain recently voiced by Reid. Conservatives should unite behind Justice Thomas and defend his natural-law jurisprudence because nothing less will resuscitate the Constitution they hope to save....
Posted by John Weidner at December 26, 2010 9:42 PM
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