Justice Brennan and the slippery slope by Joseph Sobran The legacy of William Brennan, who died last week at 91, is summed up in the phrase "judicial activism." In an editorial eulogy, The New York Times praised him for his belief that "the Constitution was a living document that could and should be interpreted aggressively," as opposed to "the narrow, static doctrine of original intent, the notion that the Constitution can best be interpreted through the eyes of the Framers." Brennan himself attacked the idea of seeking the Framers' original intent as "arrogance in the cloak of humility." Apparently his own notion of humility was satisfied by giving the Constitution meanings nobody had ever suspected it of containing. Or, as he put it, the "genius" of the Constitution lay in the adaptability of its great principles to cope with current problems and needs." In plain language, Brennan imposed his own liberal agenda and said it was the Constitution speaking. He was ofton able to muster majorities on the Supreme Court to join him in this judicial ventriloquism. But even when his goals were worthy, his methods were despotic. In landmark opinions, Brennan held that the Constitution forbids the states to apportion their legislatures in their own ways, to define libel as they see fit, to cut off welfare benefits without a hearing, to ban the distribution of contraceptives to unmarried people, and to require public schools to balance the teaching of evolution with the teaching of theistic doctrines of creation; he also concurred in rulings forbidding the states to ban abortion and to execute criminals. Maybe Brennan knew how the states should have been governed better than the people of the states did. His various positions can be argued as matters of policy. But it was dishonest for him and his admirers to pretend that these positions were constitutional imperatives. And that pretense has done serious damage to the rule of law. Ideologically predictable, Brennan made the law itself unpredictable. In pursuit of his own agenda, he overturned settled understandings and ignored the clear language of the Constitution. His most important rulings usurped the powers constitutionally reserved to the states and the people thereby enlarging - unconstitutionally - the powers of the federal judiciary. Interpreting the Constitution, Brennan once said, "demands of judges more than proficiency in logical analysis." Maybe so, but it does demand such proficiency above all other things, and to disparage reason is to abandon the quest for stable law. Under jurists like Brennan, we are back where we started: subject to the arbitrary will of men rather than the irnpersonal rule of law. True, the states are often badly governed. On many specific issues they might have been better ruled by a William Brennan armed with dictatorial powers than they were hy their own legislatures, if results are everything and procedure doesn't matter. But there can be no shortcuts through the Constitution. The individual rights Brennan cherished are often abused. Is that an argument for ignoring them even when they are enshrined in law? Liberals insist that banning pornography is a slippery slope to thought control. But allowing a government to claim powere never granted to it, a habit now virtually synonymous with liberalism, is far more surely a slippery slope to tyranny. After all, every totalitarian state says it is merely trying to "cope with current problems and needs" when it dispenses with the inconvenience of the rule of law. The test of an honest jurist is whether he is willing to rule against his own preferences, deferring, however reluctantly, to what the law requires in the case at hand. The law may be wrong the legislature may be derelict, the people may be corrupt; but still, the law is the law and it must be honored. But Brennan's rulings were the triumph of preference over deference. He ruled without the normal regrets of a justice who sometimes feels compelled to put the law ahead of his personal desires. For him, as for many of his generation, the office of Supreme Court justice was an irresistible opportunity to wield power in the guise of interpreting the law.