Dayton v. Kennedy

Returning Senator Mark Dayton to the Ranks of the Idle Rich in 2006

12/01/2004

Con Law Primer

The next time you wonder what all the fuss is about with judges, filibusters, Supreme Court appointments and "the nuclear option", read this piece by Bruce Fein. In it you will see the judicial philosophy of Clinton-apointee Justice Stephen Breyer laid bare.

Fein writes: The liberal appointee of President William Jefferson Clinton rhapsodizes over Constant's utopian visions: "active and constant participation in collective power [by every citizen]"; "sub[mission] to all the citizens without exception the care and assessment of their most sacred interests;" [and] ennoble[ment] [of the people's] thoughts and establish[ment] among them [of] a kind of intellectual equality which forms the glory and power of a people." The associate justice discovers a new constitutional right that had eluded his predecessors for more than two centuries — the people's right to an active and sleepless participation in the exercise of sovereign power, and elaborates that, "The people must have room to decide and leeway to make mistakes."

As James Madison amplified in The Federalist Papers, if every Athenian citizen were a Socrates, an assembly consisting of all would still be a mob. The legislative power was thought most vulnerable to abuse. Checks such as bicameralism and a qualified veto were embraced to forestall a mutability and proliferation of special interest laws. To proclaim a people's constitutional right to "active liberty," i.e., decisive influence over sovereign decisions akin to a daily plebiscite, is nonsense on stilts. Further, as Humpty Dumpty would say, that invented right can mean anything a justice wants it to mean, no more or less.

Justice Breyer does us a great favor by showing his hand. For nearly a half-century the left has attempted to use the courts to accomplish what it could not otherwise do through the various elected legislatures of the people. The long-term difference between the types of judges and justices offered up by the last President and the current President could not be more stark. Simply put, it is the difference between a constitutional republic and tyranny -- even the benevolent tyranny offered by Breyer and several of his robed colleagues. Consider that the next time you feel like resting on the successes of this year's election.

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