Original Intent
Topic: Original Intent
This morning, we were treated to Arlen Specter and Patrick Leahy discussing possible Supreme Court nominations on Meet the Press. Together they made the startling suggestion that Justice Sandra Day O'Connor might withdraw her resignation were she offered the post of Chief Justice. They seemed to hint that Rehnquist should step down in her favor for this purpose. Clearly, liberals (and I include Specter, though technically a Republican} quail at the prospect of losing a "liberal seat" on the Court.

Leahy threw down a gauntlet by declaring that a nominee who held to the "original intent" of the Constitution, as did Robert Bork, would be wholly unacceptable to Democrats. Original intent, along with unrestricted abortion, constitute Democrat litmus tests.

Those who fail to grasp the meaning and import of original intent will benefit from Bork's own explanation in his 1990 book, The Tempting of America: The Political Seduction of the Law (NY: The Free Press, 1990), pp. 5-6.

A judge, Bork writes, "is bound by the only thing that can be called law, the principles of the text, whether Constitution or statute, as generally understood at the enactment. The lay reader may wonder at the emphasis put upon this apparently simple point. Of course, the judge is bound to apply the law as those who made the law wanted him to. That is the common, everyday view of what law is. I stress the point only because that commonsense view is hotly, extensively, and eruditely denied by constitutional sophisticates, particularly those who teach the subject in the law schools.

He goes on to describe "today's constitutional cognoscenti, who would have judges remake the historic Constitution from such materials as natural law, conventional morality, prophetic vision, the understanding of an ideal democracy, or what have you. There is a remarkable consistency about these theorists. No matter the base from which they start, they all wind up in the same place, prescribing a new constitutional law that is much more egalitarian and socially permissive than either the actual Constitution or the legislative opinion of the American public. That, surely, is the point of their efforts."

In short, these "progressives" care neither for the actual intent for which a law was designed nor for its historical application (i.e., precedent) but for what they can read into it to support their own worldview and their own ends.

Copyright 2005 Paul A. Hughes