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Conservative Republicans and judicial activism

The intent was to write a somewhat lighthearted “back to school” column.  But alas, last week a chilly political wind blew across the otherwise parched landscape, and in so doing postponed any attempt at frivolity.

Indeed, it seems that everywhere one looked over the past few days Republicans could be seen reversing long-held positions and causing observers on the left and the right to wonder if the heat had in fact had some sort of negative impact.  First there was President Ronald Reagan’s ultra-conservative budget director David Stockman chastising Republicans for their steadfast resistance to any tax increase as a tool in the arsenal for attacking the burgeoning budget deficit.  Stockman, it may be remembered, was the chief purveyor of supply side economics and the first advocate of the “starving the beast” approach to cutting government programs.  Stockman was joined during the week by well-to-do conservative businessman and vocal critic of President Obama, Mortimer Zuckerman, whose latest broadside at Obama claimed that the highly controversial stimulus package was not large enough and that it was ill-targeted.  The economic and tax debate can wait for another day.

The more startling “fruit basket turnover” of the week came in the form of the growing advocacy by a number of Republican lawmakers for revamping and re-interpreting parts of the venerable old guarantor of due process in the United States Constitution – the 14th Amendment.  Ironically, many of the same Republican senators who expressed concern over recently confirmed moderate Supreme Court Justice Elana Kegan for her judicial activism soon turned their attention to a would-be precedent-shattering call for change in the 14th Amendment.

The reason given for the attention to this middle of the three historic Civil War Amendments is its pesky guarantee of citizenship to anyone born in the United States regardless of circumstances.  The reader will remember from middle school civics class that in the years immediately following the Civil War the 13th Amendment freed the slaves, the 14th Amendment made them citizens in every state on equal footing with freedoms that could not be denied without due process of law and the 15th Amendment conveyed to newly freed males the right to vote.  The very first sentence of the 14th Amendment states that “all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the Untied States and of the State wherein they reside.”

Suffice it to say, that it was several decades before the promises of these three amendments were fully realized, but the 14th Amendment to the Constitution became a workhorse during the Civil Rights movement in the middle of the 1900s.  Those who now advocate change state that the authors of the 14th never anticipated numbers of pregnant women crossing our borders simply to give birth to new American citizens.  Hence they now embrace the need for this corrective instance of judicial activism.

This is yet another case in our long history of the need for those exercising restraint to rally around the steady old bedrock of the Constitution.  Activists from both the left and the right have made runs, from time to time, at the Constitution in efforts to address momentarily complicated social issues.  Such efforts are usually made as minimalist efforts at “tweaking” the language or meaning of Constitutional wording to better fit “current situations.”  For example, the left has attempted to narrow the meaning of the 2nd Amendment’s protection of the right to keep and bear arms by merely eliminating protection for “Saturday night specials” or military assault weapons.  The vocal and politically powerful National Rifle Association has jealously and successfully guarded against any chipping away of such gun ownership rights.  There have been numerous efforts from both the right and the left to restrict freedoms of speech, assembly and religion under the 1st Amendment.  Then there was the breakthrough amendment by social activists that resulted in the passage of the ill-fated 18th Amendment that prohibited the manufacture and sale of alcoholic beverages.

There are a few lessons to be learned from these and other efforts to bend the Constitution to fit the passions of the moment.  First, it should be clear from this attempt that judicial activism knows no specific ideology, but it can be and is practiced by both the right and the left.  Secondly, the Bill of Rights and the additional amendments that follow cannot be the subject of majority politics when they are called into action.  They must protect minorities as well.  Thirdly, the United States Constitution has been in place for nearly two-and-a-quarter centuries.  Social issues about which we are rightfully passionate will come and go.  The Constitution would likely come apart at its seams if we endeavored to change it to conform to every politically popular position.

Finally, whether it is the 1st Amendment, the 2nd Amendment, the 14th or any of the others we had best live with some actions we do not agree with rather than commence proposing restrictions based merely on popular sentiments of the moment.

Dr. William Martin Wiseman is director of the John C. Stennis Institute of Government and professor of political science at Mississippi State University. Contact him at marty@sig.msstate.edu.


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