The Alito hearings are stirring my atrophied legal muscles. And it occurs to me that the concept of "unconstitutional," one linked inextricably now to the phrase "liberal activist judges," deserves a little more attention.
"Unconstitutional" does not mean the court imposes its will on the people, the Congress, or the President. "Unconstitutional" is not an extension of will at all; and that may be where the problem lies. "Unconstitutional" does not extend the will of the court out into the world; it only restricts the power of the government to act. It does exactly what it says it does: it declares that the government does not have the power to take an action.
The Constitution alone, under our system of government, gives government the power to act. It has been interpreted, at least until Alberto Gonzalez and Samuel Alito, as a restriction on power. Those powers not specifically enumerated have been held, largely, not to have been granted. And when such powers are found, as in the famous "penumbral rights" Justice Douglas found in Griswold, and Justice Blackmun relied on in Roe, they exist as rights of the individual, and such rights are always a restriction on the power of government to act, especially if such action is in interference with those rights.
So the government does not have the power to establish separate but equal schools, based on racial distinctions. It does not have the power to arrest a criminal suspect without giving that suspect notice of his basic constitutional rights in the criminal justice system, or access to an attorney. Government cannot restrict the sale of contraceptives, or wholly restrict access to abortion.
A decision that a statute or act of a governmental authority is unconstitutional, is a restriction of power, not an extension of it. The court's power is wholly negative in this field, not positive. It can only restrict the government's authority to act. Not even its ability, because if the executive (which enforces the law) chooses to ignore the directive of the court, the court has no power to enforce its ruling. It has no control over the purse, no army or navy or even police force at its disposal. All the actions of control are with the Executive or Legislative branches. The court can only declare what those branches cannot do.
"Liberal" is usually associated with an extension of power, with the extension of governmental involvement in the public or private sphere. But these are, properly, the realm of the Legislature, which can authorize spending, support certain actions, make positive efforts to do what it sees fit as authorized under the system established by the Constitution. The limitation on that power is the very "conservative" power of judicial review; the power of the courts to say "No."
So, for example, I can write a restrictive covenant into my title deed, seeking to restrict the sale of my real property from certain classes of people in perpetuity. The Courts, however, cannot enforce that covenant, for such enforcement has been ruled unconstitutional. That is a restriction on governmental power. In Bush v. Gore, however, the Supreme Court went beyond declaring that the Florida Supreme Court was restricted in the application of its power over the parties in that case, and declared the victor of the election in question. That was, in fact, a "liberal" use of the court's power, if by "liberal" we mean an extension of the government's power in new and unprecedented ways.
The ironies raised by these issues will provide further discussions. Not least is the irony of how this connects us to Reinhold Niebuhr and Pat Robertson.
BTW: I think Sen. Biden is right: these hearings have become a farce. Time to return to the "historical practice:" take the nominee to the floor, and debate his statements, without all this bafflegab about what he or she can't comment on, can't remember, or simply can't say.
And Sidney Blumenthal has a cogent examination of Judge Alito's judicial philosophy.
[and now I will stop piling up posts for awhile, and allow the comments to develop]
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