Another rhetorical strikeout from Al Franken
One problem with a political landslide of the kind that Republicans now contemplate in November is that it may also sweep into office various ideologues who become embarrassments -- candidates such as J.D. Hayworth and Rand Paul. Democrats are familiar with this possibility, because they have Sen. Al Franken.
In the months since his election, the author of "Rush Limbaugh Is a Big Fat Idiot," who has referred to opponents as "human filth" and who once accused Ronald Reagan of supporting the torture and rape of nuns, has tried to control his bile addiction, at least in public. Speaking last week to the American Constitution Society, he relapsed.
Most of the traditional elements of a Franken rant were employed against Chief Justice John Roberts and conservatives on the Supreme Court. The attack on motives: The "Roberts court has consistently and intentionally protected and promoted the interests of the powerful over those of individual Americans." The silly hyperbole: "What individual rights are so basic and so important that they should be protected above a corporation's right to profit? And their preferred answer is: None. Zero." The sloppy, malicious mixed metaphor: The Roberts court is putting not a "thumb" but "a fist with brass knuckles" on the "scale" of justice. Franken was clearly summoning all his remaining resources of senatorial dignity not to say something like Roberts is a "lying liar who lies along with his lying lackeys for his lying corporate lying masters."
You would never suspect from Franken's speech that the Roberts court, in key cases, has sided with employees who allege discrimination and against corporations. It is never enough for Franken's opponents to be misguided or mistaken; they must want women to be sexually harassed in underpaid jobs while their children die of lead poisoning.
Franken's speech is worth noting only because it is the purest, most simplistic expression of a liberal argument. "Originalism," he says, "isn't a pillar of our constitutional history. It's a talking point." The real purpose of judicial interpretation, he continues, is to "defend our individual rights and liberties against corporate encroachment." Any liberal constitutional ruling immediately becomes sacred precedent. Any judge who overturns a law in service of a liberal ideal is a hero. Any resistance to either practice is conservative judicial activism. Franken mocks Roberts's description of the role of a judge as an umpire, applying rules he does not create. "How ridiculous," Franken says. "Judges are nothing like umpires."
No, in Franken's view judges should be more like the Committee of Public Safety during the French Revolution -- an unelected group of super-legislators who issue binding verdicts based on their advanced conceptions of justice and class warfare.
Originalism is not a talking point; it is a developed, consistent theory of judicial interpretation. But that does not make it easy to apply. As most advocates of originalism have long recognized, there is no single intent of the fractious Founders. The Constitution's meaning is found by examining the way it was generally understood at the time of its passage -- not only by the Constitutional Convention but also by the state ratifying conventions and informed citizens. Some constitutional provisions are straightforward -- a president must be at least 35. Others -- such as forbidding "cruel and unusual punishment" -- seem intentionally vague. The determination of the Constitution's original public meaning leaves room for disagreement and judicial discretion, as the spirited historical argument between Justice Antonin Scalia and Justice John Paul Stevens in the Heller decision on the "right of the people to keep and bear arms" demonstrates.
But theories of constitutional interpretation that become untethered from the text give judges unchecked power. When the late Associate Justice William Brennan argued that the Constitution "embodies the aspiration to social justice, brotherhood and human dignity that brought this country into being," he was awarding himself permission to impose his own conceptions of justice, brotherhood and dignity, instead of enforcing a set of specific legal protections.
To restrict or legalize abortion, to allow or forbid gay marriage, a legislator would need to write and pass a law, get it signed by the president or a governor, and perhaps override a veto. A Supreme Court justice need only persuade four other people. If he or she is not internally constrained by the authority of a text, he or she is not constrained.
Franken is attempting to be serious, but he should not be taken seriously. A judge who does not think himself an umpire may end up an autocrat.