A Stitch in Haste

The "activist judge" crowd, perhaps sensing the decline and fall of that silly concept in the wake of Terri Schiavo and the filibuster conundrum, are regrouping and trying to salvage what little usefulness remains from it (i.e., pander to those who are still ignorant enough to buy into it).

Today we have a quite remarkable "last gasp" piece in the form of an op-ed (WSJ - $, or see OpinionJournal) by Professor Lino Graglia on "Death by Due Process" --

The Constitution is a very short document, easily printed on a dozen pages. The Framers wisely meant to preclude very few policy choices that legislators, at least as committed to American principles of government as judges, would have occasion to make.

The essential irrelevance of the Constitution to contemporary constitutional law should be clear enough from the fact that the great majority of Supreme Court rulings of unconstitutionality involve state, not federal, law; and nearly all of them purport to be based on a single constitutional provision, the 14th Amendment — in fact, on only four words in one sentence of the Amendment, "due process" and "equal protection." The 14th Amendment has to a large extent become a second constitution, replacing the original.

Um, no. I think Graglia's printer may have had a paper jam when he printed out those "dozen pages." Most "contemporary constitutional law" comes from (often successful) assaults on the Bill of Rights (three words which, incidentally, appear nowhere in Graglia's piece).

Graglia shows his contempt for individual rights quite brazenly:

The basic principles of the Constitution are representative democracy, federalism and the separation of powers, which places all lawmaking power in an elected legislature with the judiciary merely applying the law to individual cases. Undemocratic and centralized lawmaking by the judiciary is the antithesis of the constitutional system.

Gee, I thought the most "basic principles of the Constitution" were the notions of limited government, enumerated powers and individual rights. Oh, and judicial review. Silly me (Graglia has, in other works, rejected outright the entire concept of judicial review).

The fact that any serious legal scholar (or any layman with an ounce of common sense) accepts as a given that (most of) the Bill of Rights now applies to the states via the Fourteenth Amendment does not make cases involving state violations of the Bill of Rights "Fourteenth Amendment" cases — they're still First Amendment cases, or Fourth, Fifth, Sixth or Eighth Amendment cases.

By the same token, it seems to me that very little "contemporary constitutional law" comes from the three (still living) branches of the Fourteenth Amendment (i.e., procedural due process, substantive due process and equal protection). You cover (civil) procedural due process in about one Con Law class in law school, while equal protection has pretty much been played out (complete with no heightened scrutiny for anti-gay discrimination). And as for substantive due process (e.g., contraceptive and abortion rights, right-to-die, etc.), I don't think Professor Graglia's problem is that "most cases" involve substantive due process, but rather that "most cases he disagrees with" involve it. (Or, stated differently, it is not that most cases come from Fourteenth Amendment jurisprudence, but rather that most headlines come from those cases).

A subtle difference, perhaps, but one that completely vitiates his entire thesis. Just because I don't like current Commerce Clause jurisprudence doesn't mean I get to falsely misrepresent the volume of Commerce Clause cases actually being decided.

One more thought, often repeated on this blog: It's the height of jurisprudential hypocrisy to lament, as Graglia does, judges reading law into the Constitution while having no compunction at all reading text out of the Constitution — Graglia is part of the same cabal (Robert Bork is the editor of a book featuring Graglia's work) that arrogantly refers to the Ninth Amendment and to Fourteenth Amendment Privileges & Immunities as "inkblots." It was jurists like Bork, Scalia and Graglia who shut the door on individual rights — who are they to complain when other judges start opening windows?

Call such jurists conservatives, call them originalists, but do not dare call them "strict constructionists." They are nothing of the kind. And do not dare let them whine about what is and is not in the Constitution — they have no standing to do so.