A review in Washington Lawyer magazine of U.S. Supreme Court justice Stephen Breyer’s recent book, The Court and the World: American Law and the New Global Realities declared that he “makes a ringing defense of the rule of law.” That was a curious conclusion, in light of how Breyer—one of the most preeminent leftists in the American legal profession—treats the law himself and how other prominent, powerful leftist legal figures have been acting recently.
Breyer has perhaps been the Supreme Court’s leading opponent of “originalism”—the view that the Court should interpret constitutional provisions based on what the Founding Fathers meant by them—and promoter of the notion of a “Living Constitution,” which holds that it has a dynamic meaning and so the views of contemporary society should be turned to in interpreting it. What this has meant, in practice, is that American constitutional law has been shaped to conform to a leftist or “progressive liberal” worldview. So, we have a solid bloc on the Court, appointed by Presidents Clinton and Obama and anchored by Breyer, that reliably votes together on questions coming before the Court that are important to the left. They look less like judges solidly anchored in the law and rendering sober-minded legal analysis than a political faction. While the influence of political perspectives is nothing new on the Court, there seems to be less pretense now than ever about even providing a good constitutional justification for leftist-tilting decisions.
So, the Court suddenly claims that same-sex “marriage” is an equal protection right, as if anyone could have found a fragment of justification for such a bizarre notion in any historical understanding of the clause, the constitutional document, or our constitutional tradition. A generation ago, when the Court set itself on the course of providing constitutional justification for sexual liberation (adapting to the “imperatives” of contemporary society), it invoked an open-ended notion of privacy to make abortion a right. This was in spite of the facts that the Fourteenth Amendment, which the Court invoked, was adopted at a time when states increasingly were enacting strict anti-abortion laws and our common law background, as explained by the revered William Blackstone, held that the unborn child had a right to life that was part of a more basic right of personal security.
What stood behind Blackstone’s thinking—and behind the American constitutional tradition, as explained by probably the greatest constitutional scholar of the first-half of the twentieth century Edward S. Corwin—was the natural law. One can readily accept a sensible adaptation of law, even some of our constitutional law, to truly changing circumstances. After all, the genius of the common law was being able to accommodate changing social conditions; it was change within the context of upholding perennial realities and truths. The “Living Constitution,” on the contrary, is an exercise in legal positivism. The judges make the law instead of making an honest effort to declare what is truly part of the Founding document and the tradition it emerged from. The mainstream of American jurisprudence long ago pushed aside the notion of natural law, and now rejects with abandon the sense of the need to be faithful to the intent of our Founders and many of the principles they sought to enshrine in the Constitution. While it doesn’t discard such principles as due process and equal protection, it gives them a novel meaning based on current ideological imperatives.
So leftist ideology shapes the law, and the rule of law—a central principle of the American Founding—becomes a casualty of ideology. Instead of being grounded in perennial truths—like the immemorial customs that shaped the common law, behind which stood the natural law—American law at its highest level is nothing more than the ideological preferences of a bare majority of the Supreme Court. Constitutional law, for Breyer and his fellow Living Constitutionalists, then, is just what the justices say it is—following the predominant ideological trends—and its meaning is to be accepted because they have decreed it.
The rule of law based merely upon ideological prescriptions fashioned by men essentially becomes a rule of politics. While it may take on an elevated character when proclaimed by a bloc of “progressive liberal” Supreme Court justices, it becomes much cruder—in fact, something like the rule of blind force to back up an ideologically driven agenda—just a bit down the line from them. So, we have recently seen celebrated cases of the twisting of law, naked political calculation, and blatant favoritism and collusion to bring the heavy hand of the law on those seeking to expose wrongdoing or just exercising their legitimate prerogatives as citizens. In Houston, District Attorney Devon Anderson turned a grand jury probe of Planned Parenthood’s selling of aborted baby parts into an indictment of the citizen journalists David Daleiden and Sandra Merritt who exposed their activities. This involved such apparent chicanery as the DA’s ongoing consultation with PP’s legal counsel during the grand jury proceedings and communicating with another pro-abortion lawyer (leaking information about confidential grand jury proceedings to such unauthorized persons is illegal), pressure by PP’s counsel to indict the pro-life duo, twisting the law so that Daleiden and Merritt’s staged “offer” to buy baby parts to expose what was going on—but not PP’s readiness to sell them—and their presenting fake IDs suddenly became the focus of the criminal probe. The manipulation of grand juries by prosecutors around the country, by the way, has become business as usual.
In addition, we witnessed the shocking raid ordered by California attorney general Kamala Harris on Daleiden’s home there to seize video footage of his undercover discussions with PP operatives that incriminated them. Harris is a long-time open supporter of PP and recipient of its campaign contributions who’s currently seeking the Democratic U.S. Senate nomination in the state. She acted after articles in the left-leaning Los Angeles Times prodded her to conduct a criminal investigation of Deleiden, even though she did nothing about similar undercover operations by animal rights activists. The seizures also had the effect of compromising ongoing civil suits and violating attorney-client privilege. Then, we can recall the spectacular pre-dawn raids at the homes of leaders of conservative nonprofit organizations supporting Governor Scott Walker in Wisconsin and ensuing investigations of purported campaign law violations, all under a cloud of forced secrecy, by a renegade Milwaukee County Democratic district attorney after the passage of Walker’s public-sector union law. The investigations yielded almost nothing and after many people were put through the ringer of such outrageous politically motivated fishing expeditions the legal intimidation was finally stopped by the courts.
The point here is that positivistic jurisprudence has had the effect of progressively corroding the integrity and just character of law and the citizen legal protections that go along with that. These are just a few recent noted examples of the consequences. The rule of law that a Justice Breyer supposedly is so committed to sought to insure just the opposite of what has been happening in these cases (that is, that we would have “a rule of law and not of men”). They illustrate how the rule of law is giving way anew to the mere arbitrary rule of men—that is, men in power who want to further their ideological preferences and the political and economic advantage of those who it’s in their interest to promote. Legal positivism and its ensuing enshrinement in constitutional interpretation—à la Breyer and the other leftist Living Constitutionalists on the Court—has created an outlook that in no small way is a root cause of this.