In the matter of Arlen Specter

I haven't written (although I've been following the arguments, both pro and con) regarding Senator Specter's presumed ascension to the chairmanship of the Senate Judiciary Committee. Hugh Hewitt has argued persuasively that preventing Specter from becoming the chairman may have serious consequences. Others have argued strongly that he should not be the chairman because of his position on abortion.

Beldar has expressed his opinion, and I agree with him. (I wrote both of my Senators as well as Senator Frist on the day that Senator Specter made his comments.) Frankly, I think Andrew McCarthy best articulates my concerns about Senator Specter's position.

Senator Specter believes the Constitution is a living document to be interpreted by judges. Therefore I think Roe v. Wade is a distraction from the critical argument and compelling reason that Arlen Specter should not be the Chairman of the Senate Judiciary Committee.

As McCarthy puts it

Tragically, though, all this has hopelessly obscured what is most critical about Roe: constitutional governance. Abortion aside, Roe is about whether the American people should decide for themselves, democratically, how they will live their lives, or whether they should submit to robe-clad philosopher kings.

To understand this requires recognition of two very simple (I would argue, unassailable) premises. First, the U.S. Constitution, in whose ultimate interpretation the Supreme Court has been thought dispositive since it claimed that power in 1803 (Marbury v. Madison), simply does not, and was never intended to, provide a definitive, substantive answer to every question - or even most questions - confronting our society. Why is this of epic moment in a democracy? Because where the Constitution provides an answer, the will of the people, expressed through debate and elections, is trumped. The people can change the outcome only by amending the Constitution.

The second premise implicates the training of lawyers. Since the Constitution does not answer every question, there is necessarily some undefined expanse of life's matters as to which people can reasonably debate whether the Constitution does or does not prescribe an outcome. Now, if we were ruled by physical force, might would determine right - the ability to project raw power would dictate results. The force we are ruled by, however, is words.

Privacy advocates would be appalled, I'm sure, to know that I trace the beginnings of the downfall of the Supreme Court to Griswold v. Connecticut, in which Chief Justice Douglas found a "right of privacy" in the "penumbra" of "emanations" from the Bill of Rights.

I agree with Mr. Justice Black, whose dissenting opinion was amazingly prescient of our present day calamaties. (Emphasis mine.)

The Court talks about a constitutional "right of privacy" as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the "privacy" of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities. Such, for example, is the Fourth Amendment's guarantee against "unreasonable searches and seizures." But I think it belittles that Amendment to talk about it as though it protects nothing but "privacy." To treat it that way is to give it a niggardly interpretation, not the kind of liberal reading I think any Bill of Rights provision should be given. The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. He simply wants his property left alone. And a person can be just as much, if not more, irritated, annoyed and injured by an unceremonious public arrest by a policeman as he is by a seizure in the privacy of his office or home.

One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. This fact is well illustrated by the use of the term "right of privacy" as a comprehensive substitute for the Fourth Amendment's guarantee against "unreasonable searches and seizures." "Privacy" is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures. I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision. For these reasons I cannot agree with the Court's judgment and the reasons it gives for holding this Connecticut law unconstitutional.

This doesn't get discussed much in the donnybrooks over the judiciary and Roe v. Wade, but the present "standard" is serious flawed.

If it's OK for a court to overturn a law simply because it thinks the law is somehow unjust yet constitutional, then it's equally acceptable for a court to uphold a reprehensible, unconstitutional law simply because the court is not offended by it. This is precisely why the left is so exercised over the idea that President Bush could "change" the court. The unspoken admission of the left is that activism cuts both ways.

Senator Specter stands in a long line of politicians who think that an activist judiciary committed to social change is a good thing. I think his and their views are short-sighted and detrimental to the national wellbeing.

UPDATE: Calblog "gets it" and so does Patterico, who, I forgot to point out, led me to McCarthy's article in the first place.