The slippery slope

Steve Schear azur at
Mon Aug 11 15:57:44 PDT 1997

		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

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.

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