Lost habits of the heart

Do we have the Supreme Court we deserve?

Issue: "Global Warming," Nov. 29, 1997

For months President Clinton has complained that Republicans are not moving quickly to confirm the judges he nominates for federal court seats. In a recent radio address he said, "We can't let partisan politics shut down our courts and gut our judicial system."

Such a statement typifies Bill Clinton's charm. He often says, in essence, What I do is above politics, what Republicans do is partisan. House Majority Whip Tom DeLay (R-Texas) responded by opposing judicial activism, praising judicial restraint, and stressing the need for governmental checks and balances.

Many reporters, not knowing much about history, scoffed at Mr. DeLay's remarks. Many portrayed this debate as one prompted by the desire of beaten-down conservatives to put some scalps on the wall. But, significantly, concerns expressed by Mr. DeLay were present even before the first federal judges were appointed over two centuries ago.

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If you sat with me in a quiet archive and turned the yellowed pages of a newspaper from 1788 such as the New York Journal, you would find concern about justices "independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself."

If you scoured records of the debates at state conventions called to ratify the Constitution, you would see concern that the Supreme Court would have power as vast "as a boundless ocean."

If you studied the recommendations of that era, you would see statements like this: "When great and extraordinary powers are vested in any man, or body of men, powerful checks should be performed to prevent abuse.... The supreme judicial ought to be liable to be called to account, for any misconduct, by some body of men."

Why weren't such recommendations accepted? Some defenders of the Constitution argued in response that justices would exercise self-restraint because they shared the habits of discipline that then dominated American culture-in particular, the discipline that came from Bible study where adults and children were taught to be strict constructionists about God's word.

The goal two centuries ago was to read a Bible passage to find out what God was saying, not how modern minds interpreted it. If the passage was confusing, readers compared it with other parts of the Bible, using the more clear to explain the less clear. Some verses were still debated, but a whole system of theology was not based on elastic clauses.

The founders assumed that care with God's covenant would carry over to care with the national covenant known as the Constitution. A person trained in biblical strict construction would be a strict constitutional constructionist-and that's how it generally was, for a century.

As the 20th century flowered, however, careful Bible reading withered. Many presidents twisted Scripture, and many ordinary folks became used to sitting in a circle and declaring what they felt a Bible passage meant to them-regardless of its objective meaning.

Is it any wonder that the Constitution is twisted, with original intent generally neglected? The habits of heart and mind on which the founders relied are no more. Some people say we get the president we deserve. Maybe we get the Supreme Court we deserve also.

What is to be done? Yes, Republicans need to scrutinize President Clinton's nominees carefully, instead of sighing with relief when the president nominates a jurist not obviously outrageous. But the problem is more basic.

Conservatives such as Robert Bork have suggested that we need structural change: Justices could serve for limited terms, and no-confidence votes could replace impeachment proceedings that have become missions impossible. Mr. Bork and others have been lambasted for harboring supposedly extremist ideas.

But such suggestions were part of the debate of 1788. They seemed unnecessary to most leaders only because American society then had something even more durable than a gold standard-the Bible standard. Now that we no longer have it, we scramble for substitutes.

We should not be fooled: No structural change will work as well as the personal discipline that once kept justices from seeing themselves as gods. But we must not let partisan judicial interpretation gut our country. New checks and balances can buy us time in which older understandings and habits might be able to reassert themselves.

Marvin Olasky
Marvin Olasky

Marvin is editor in chief of WORLD News Group and the author of more than 20 books, including The Tragedy of American Compassion. Follow Marvin on Twitter @MarvinOlasky.

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