The Senate v. The Constitution

Preparing for the next Supreme Court confirmation battle

With all the praise being heaped on departing Supreme Court Justice John Paul Stevens, a person might have forgotten momentarily that the man spent a good chunk of the past two decades working to soften up the Constitution.

Rest assured, his replacement will take to the task capably—empathy above justice, and all that—but what I really look forward to is the confirmation battle because Democrats, according to Politico, plan to turn Senate hearings into a referendum on "corporations vs. the common man."

According to the story, Senate Judiciary Committee Chairman Pat Leahy's political strategy will be offered up in a simple question: "Do you share our concern about the fact that the court always seems to side with the big corporate interests against the average American?"

One would think that the victor (and to contend that the court "always" sides with big corporate interests is preposterous) would be less significant than the constitutional merits of the decisions.

Then again, ginning up anger about corporations is always a useful distraction, because what Leahy is really asking is this: Do you share our concern that the Constitution, too often interpreted as written, is holding back an empathetic and enlightened progressive agenda?

You remember the outrage over Citizens United v. Federal Election Commission? In that case, some "average Americans" decided to produce a political film about Hillary Clinton. It was censored by the FEC because, as everyone knows, the First Amendment should not apply to unsavory characters who've gotten themselves mixed up with corporate interests.

Lest anyone forget, Stevens—in a spirited dissent—sided with government, who argued that even books (no more legitimate a vessel for political speech than any other, actually) could be banned by government through campaign finance laws if necessary.

So Leahy, who believes Stevens is a model jurist, likely will ask many piercing questions (How evil is corporate America, Nixon evil or merely Nazi evil?) in defense of average Americans.

But I wonder whether the average American believes, like Justice Stevens, that an unelected federal agency, such as the Environmental Protection Agency, should bypass Congress and, by fiat, regulate carbon dioxide, a chemical compound that permeates everything, without any consideration for cost or imposition or the electorate?

Do most average Americans, like Justice Stevens—who dissented on the landmark Second Amendment case of District of Columbia v. Heller—believe that once a judge deems something dangerous enough, that judge should empower government to ban it, even though that something happens to be explicitly protected by a constitutional amendment?

Do they believe, like Justice Stevens, that government should continue to use racial quotas and preferences rather than allow citizens the freedom to succeed or fail on their own merits—or even their own luck—rather than on the color of their skin?

Do they believe, like Justice Stevens, that local government should be permitted to throw American citizens off their own property and out of their homes? Do they concur that government should then be able to hand that property over to other private citizens simply because they can pay more taxes? Because, in Kelo v. City of New London, Stevens, writing for the majority, radically expanded the idea of property as "public use."

It's no mystery why Leahy would want to turn the tables on conservatives and make the confirmation hearing about corporations rather than the Constitution or the reckless manner in which justices like Stevens treat it. I would do the same if my agenda's success were tied intricately to the pliability of the document.

David Harsanyi is a columnist at The Denver Post and the author of Nanny State. Visit his Web site at www.DavidHarsanyi.com. This column first appeared at Reason.com.

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