^ Hugh Hewitt : the “:right’s” intellectual leader is no such thing.

—- —- —-

Often in political discussions these past two years I have read that the Supreme Court is the ultimate election test. It is no such thing.

Ideologues on both sides alarm us with warnings that if “the other side” wins the election, the Supreme Court “is lost for a generation.” I don’t believe that for a minute; but even if the alarmists are right, and the “side” that wins the Presidency is one whose Supreme Court opinions you detest, that’s no reason to support a man like  Trump or to oppose him, as Hewitt suggests it is.

(That said, this editorial is nOt about Trump, It is about the Supreme Court and elections.)

The Supreme Court cannot DO anything. It can only prevent things from being done. Our Federal government is in serious trouble if its most important branch is the one that can only stop stuff, never do any. It is even more serious trouble if the Court is subverted by political objectives to become not a judicial body but an adjunct of “stop” Congresses.

Hugh Hewitt, a “conservative” talk show host, in the following article, renders the Supreme Court a political body and is glad to do so. Read him at length: http://www.washingtonexaminer.com/counting-the-cost-of-a-supreme-court-lost-to-the-left/article/2598810

For Mr. Hewitt’s entire argument — which I will destroy later — there is one quick answer : you don’t like the kind of judges you assume Hillary Clinton will appoint ? Then confirm Merrick Garland.

Garland’s name never appears in Hewitt’s paragraphs. Of course not.

Hewitt is held to be the “right’s” intellectual heavyweight. His article says otherwise. It’s filled with assumptions, none of which one is required to accept, and with red herrings: it’s not an argument at all, just a series of hysterias.

For example : Hewitt does not like “living Constitution” jurisprudence, but rather than argue for why not, we’re given an ugh.

Again : Hewitt assumes that Hillary Clinton will nominate “far-left” judges : not because she will — I doubt she will, and even if she does nominate them, the Senate is not likely to confirm — but because it’s one of his alarm bells.

Alarm bells may inform ideologues like Hewitt, but the facts of real life defeat them. No matter who is nominated to the Supreme Court, he or she knows what the country wants and that a Court decision can stop it only for so long. That is why Court nominees who seem to belong to one “side” or another end up, usually, as something quite else when they become Justices.

Justices usually know that the Constitution cannot be interpreted, in the year 2016 for example, as if it were 1787. They know that the history of the nation since then cannot be abolished, that it has become an integral part of the culture we are brought up in. Justices know, too, mostly, that their decisions affect the future, not the past. Justices understand, mostly, that their task is to figure out how the Constitution’s precepts and grants of power apply to laws enacted now, not in 1789. They understand also, mostly, that the nation today is not at all the nation that ratified — barely — the Constitution in 1787; and that the one part thereof that remains the same is its principles : promoting the general welfare, equal protection of the laws, citizenship of all who are born here, liberty, the Supremacy Clause. We are a nation, not 50 separate states.

Hewitt makes much of”originalism,” a method of Constitutional interpretation. Its theory is that we should apply the Constitution’s words as they were understood in 1787, when written. Is that really possible ? And even if it is, how does applying 1787 meanings to life today work out ?  Life, like words, develops and alters, adapts to unknowns, recalibrates itself. Somehow, Constitutional application must recognize these developments. Otherwise, the complexity of civic life in a diverse nation, with hundreds of paths contemporaneosuly pursued by this one or that one, will lose connection with the Constitution altogether. (Something of this sort is already happening. Trump’s supporters — and not only his —  include many who do not accept the First Amendment, the Supremacy Clause, or the 14th Amendment, among other precepts.)

“Originalism” is undermined by life itself. Words change meaning because words are public, and the public uses words in the moment, not yesterday. Words are public and they are equal because our ears hear every spoken word equally well. The ear knows no class system. It hears the immigrant equally with the aristocrat, the prisoner and the guard, the employed and the employer. The Constitution and its Amendments are written in words.

As I posed in an earlier editorial, the major decision made about our Constitution was to have it written. Many nations, including Great Britain, follow unwritten Constitutions; those that do enjoy constitutional development adjusted to actual life — to custom, if you will. Language changes over time : our spoken English is not that of Shakespeare or Chaucer, is not even that of Hawthorne and Faulkner. (And Latin became French, Italian, Catalan, Romanian, Spanish and Portuguese.) Spoken language is free to respond to the justice of the moment and does so because it cannot do otherwise: if so, it would not be understood. And the spoken word affects the written word, because when we read the written word, we speak it silently in our mind; and if what is written doesn’t sound right, it jars us and makes us quizzical. So much the more when we speak the written word. Read the Constitution aloud sometime, and you will immediately hear phrases that do not sound quite right, words and sentences that need to be read again in order to be understood, if at all.

That is where the Justices come in : interpreting the Constitution’s written word for citizens who use the language as spoken far more regularly than written.

Originalists like to say that there are no rights in the Constitution that are not explicitly enumerated therein. But this cannot be true. If this were true, then those rights that have taken shape since the Constitution was enumerated would have no home in law and would exist by custom only, thereby developing an unwritten constitution alongside the written one. That would be a far more radical situation than to find said rights within the written Constitution.

The Originalist argument is internally contradictory; and as the Constitution is a guideline for the laws of actual life, contradiction does it no good.

So much for Constitutional interpretation, the power of the Court, and alarm bells.

To sum up : voting for Trump to protect use of the Supreme Court as a stopping agent is futile and misapprises the role of our Federal government. Congress cannot be stopped fo0rever. Hugh Hewitt never mentions that, if Hillary Clinton is elected President, her Supreme Court nominations will hardly be her most powerful power. She will likely have a Congress with a Democratic majority, and she and it will be able to DO things all day long, far more things than any Supreme Court can ever stop. If there is an argument for voting Trump, THAT, not the Supreme Court, is the argument to use.

—- Mike Freedberg / Here and Sphere



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