Monday, July 25, 2005

Why we need conservative judges

Star Parker wrote on Townhall The characterizations we most commonly hear in contrasting liberal and conservative judges tend to use phrases such as "activism" vs. "restraint," and approaching the Constitution as a "living document" vs. focusing on "original intent."

The founders provided a mechanism whereby the Constitution could be a "Living Document", changing to meet the needs of a changing world. It is in Article V, i.e. Amending the Constitution. They never intended for five judges to be able to "invent" a new right, without 2/3 of both houses of Congress, plus the legislatures of 3/4 of the states, agreeing it was a good idea.
However, I think asking a more fundamental question sheds light on why our society's most vulnerable _ the poor and otherwise disenfranchised _ need conservative judges. We should be asking: "What is the purpose of the law?" In this sense, I would contrast a conservative-vs.-liberal approach as the former viewing the core purpose of the law as individual protection and the latter relating to law as a tool for social engineering.

In the conservative approach, the law we have is a product of the wisdom of the ages, and the only surprises today are how the law might apply in new situations.

In a liberal world, we live forever in a social experiment and our reality is the result of whatever thinking happens to be in vogue among the social engineers.

Using this approach, I hereby declare myself to one and all that I'm a conservative.
I completely agree.
Citizens don't need their lives defined by others. They need protection. And the vulnerable particularly need protection. Protection means having a legal code that has integrity and having judges that see their job as relating to that law to protect people from the unjust encroachment by others. I would say a society of tyranny is one in which it is never clear what the law is and how I am protected. Ironically, this also characterizes a liberal society. This couldn't have been driven home more clearly than by the Supreme Court's recent eminent-domain decision in the Kelso v. City of New London case.
I believe she means Kelo, which I discussed many times here
The Fifth Amendment exists because of the appreciation that the purpose of law is the protection of individuals. However, there does exist a social reality. So, indeed, there are situations where, if individuals are justly compensated, government may take their property for a pressing public use _ like building a road. However, creative judges over the years have transformed the sense of what public use is to justify taking property from one set of private individuals and turning it over to another set of private individuals who intend to use the property in a fashion that is more appealing to these judges. In this Connecticut case, that would be commercial development. It is mind-boggling to think that the Supreme Court has ruled to use the law, not to protect individuals, but to evacuate them from their homes so a business can come in and do its thing. And this decision was carried out thanks to the Supreme Court's liberals. The conservatives voted against it. It says it all that Clarence Thomas wrote a dissenting opinion and that the NAACP was there on his side!
The Republican party is considered by some to be the party of Big Business, but as Star points out, the Conservative Republicans were against Kelo, and it was the Liberal Democrats that voted for it.

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