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Shotgun News, September 1, 2005, pp. 20-21

Replacing Justice O'Connor

By now you have heard (or should have heard) that U.S. Supreme Court Justice O'Connor has announced her retirement. For a variety of reasons (many not related to the Second Amendment), I am gratified to see her leave. Gun owners should be happy to see her leave, however, because of who her friends are. Senator Charles Schumer (D-NY) has been among the strongest advocates of restrictive gun control laws, bans on assault weapons, and all the rest of the gun banning agenda. When Justice O'Connor announced her retirement, Senator Schumer requested that, "We hope the president chooses someone thoughtful, mainstream, pragmatic, someone just like Sandra Day O'Connor."¹

What is coming is a political struggle that is more important than a presidential election. After all, the President serves at most two terms, a total of eight years. Supreme Court justices serve for life. Justice O'Connor was appointed in 1981--she's being rewriting our laws to suit her personal preferences for 24 years--three times as long as President Bush will serve. Even worse, because the Supreme Court at least in theory prefers to follow existing precedents (what is called stare decisis), decisions that a Supreme Court justice makes will have an influence for decades after he or she leaves the bench. 

Not surprisingly, every special interest group is busily preparing for the Senate fight to confirm President Bush's nominee. Syracuse University political science Professor Rogan Kersh, who studies lobbying, believes that the various factions will spend $100 million getting their message across. The environmental lobbying group Earthjustice, sent out one million emails within minutes of Justice O'Connor's announcement, asking its members to write President Bush, asking for him to nominate an environmentalist. Not surprisingly, both sides of the abortion fight, social conservatives and social liberals, business lobbying groups--everyone, in short, who expects the Supreme Court to make decisions--wants its members to be pushing for a nominee who shares their views.²

I can't say that I blame any of these groups for wanting to have one of their own sitting on the bench. I would love to have someone on the Supreme Court who, before he made any decision, called me up and asked me how to rule. There's one little problem: all of these lobbying groups see the Supreme Court's job as a superlegislature--the place that you go to get your way when you've lost the battle in a state legislature or in Congress. This is not the job of the Supreme Court. The Court is supposed to examine laws that come before it, and determine if they are contrary to the Constitution or not. If they contradict the Constitution, the Court is supposed to strike them down; if not, the Court is supposed to assume that the voters and their elected representatives aren'tcomplete idiots, and let the law stand.

Unfortunately, quite a number of the current justices (including O'Connor) clearly share the superlegislature view of the Supreme Court's job. The Court has produced an enormous number of bizarre decisions over the last few years. Any of these decisions could be made to fit into some legitimate theory of what they are supposed to be doing up there--but collectively, they make no sense at all--except the, 'This is what I want the law to be, and you can't stop me!".

Are these decisions following the existing precedents (stare decisis)? In Kelo v.City of New London (2005), which upheld the authority of local governments to take private property and turn it over to a corporation, the Court followed existing precedents from the Robber Baron era.³ In Gonzales v. Raich(2005), the medical marijuana case,⁴ they followed a precedent from 1942 that held that wheat that never leaves a farm is engaged in interstate commerce.⁵ But in Lawrence v.Texas (2003),⁶ they overturned the existing precedent that upheld the authority of states to pass laws prohibiting homosexuality⁷

Are they making these decisions based on their concerns about government abusing the individual rights of citizens? In Lawrence, you could make that argument, but not in Kelo or McConnell v. Federal Election Commission et. al. (2003), which upheld the authority of the government to limit when you could run political advertising.⁸

Are they being driven by a scrupulous respect for the original intent of the Framers of the Constitution? Clearly not in the case in Lawrence (homosexuality was a crime--often a felony--in every state until 1961), or McConnell, and arguably not in Kelo.

Is the Supreme Court showing deference to the people and their elected representatives by upholding laws unless they are clearly in violation of the Constitution? You could make that argument in Kelo and McConnell--and in Raich, the Court refused to strike down enforcement of the Controlled Substances Act, arguing that if the defendants didn't like the law, they should resort not to the courts, but to "the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress."⁹ But in the Lawrence case, and while strking down a federal law that banned virtual child pornography, the Court wasn't prepared to trust the democratic process.¹⁰

There is no common theme to these decisions; this is simply the liberal end of the Court imposing its desire to uphold and strike down laws as it satisfies their whim. You might be tempted to say, "Okay, the liberals have had their chance to screw up the country; now it is our turn to put judges on the Supreme Court who will turn the country around." This is very tempting--but wouldn't it be better to get the Supreme Court back to its original purpose?

Once upon a time, the liberal argument for their interpretive model of the Constitution was that it was a "living" Constitution--one that grew and changed as our society has grown and changed. No one disputes that our society has grown and changed--but the Constitution has a procedure for dealing with this change--we amend the Constitution. (That's why slavery isn't lawful anymore, and why women get to vote.) Like any other contract, there needs to be an agreement between the parties that the original contract needs revision--your car loan company can't just call you up six months after you bought the car, and inform you that the interest rate will now be 19%. Amending the Constitution does not require unanimous agreement--but it does require 2/3 of both houses of Congress, and ¾ of the states. The "living Constitution" that liberals argue for only requires a majority of the Supreme Court--five people who are not elected, and effectively serve for life.

I also confess that watching what the left end of the Supreme Court has done to our "living Constitution" makes me think that the right word isn't "living" but "mutating." In the hands of our Supreme Court, what used to be a gazelle has somehow mutated into something like the Martians in War of the Worlds.

Justice Thomas (and to a lesser extent, Justices Rehnquist and Scalia) have been engaged in a fairly consistent application of the principal of original intent. What does "original intent" mean? The Constitution, when it was ratified in 1789, granted certain limited powers to the federal government, prohibited the states from exercising certain powers, protected a very few individual rights, but left nearly all other powers in the hands of the state legislatures. In response to Antifederalist concerns, the Bill of Rights, ratified in 1791, guaranteed that the federal government would not violate certain explicitly listed individual rights (such as the right to keep and bear arms in the Second Amendment). The Ninth and Tenth Amendments guaranteed that powers not explicitly given to the federal government would be retained by the states, and all other rights that individuals still retained in 1791 would be not be taken away by the federal government.

Exactly what rights were "retained" by "the people" and what powers were kept by the states is certainly a legitimate basis for argument--but to understand what is on each of those lists involves careful analysis of the laws on the books back then, not the foolishness that now passes for wisdom in the Supreme Court Building. (The Fourteenth Amendment's incorporation of the Bill of Rights adds complexity to these questions, but I need to end this column beforethe editor runs out space, or you run out of patience.)

What should we be asking our Senators to do, when it comes time to confirm President Bush's replacement for Sandra Day O'Connor? I would argue that rather than asking for a pro-gun nominee, we should be asking for an originalist--someone who takes seriously the idea that the Constitution is a contract between the generations. Determining what the Constitution allows, prohibits, or requires, involves examining the historical evidence of what the Framers intended. (It doesn't hurt any that an originalist understanding of the Constitution is inevitably pro-gun.) We need to get the message through to our Senators that a Supreme Court Justice's job is to follow the Constitution--not go looking for clever ways to write his preferences into law.

Clayton E. Cramer is a software engineer and historian. His last book was Concealed Weapon Laws of the Early Republic: Dueling, Southern Violence, and Moral Reform (Praeger Press, 1999). His web site is http://www.claytoncramer.com.