Bill Frist's fine mess

There was an entertaining exchange on the U.S. Senate floor today, televised on CSPAN2, in which Majority Leader Bill Frist interrupted a serenely delivered tirade by Senator Robert Byrd to reveal what Sen. Byrd said yesterday in a closed meeting at the White House.

Senator Frist brought up the fact that Senator Byrd told the president yesterday he would allow an up-or-down vote on the president's judges. Sen. Byrd, who was leafing through a copy of the King James Bible and telling the story of Esther, stammered that he couldn't remember exactly what he told the president, whether he'd allow a vote on all the judges or five of them or three of them, but he didn't object to voting on some of them.

The problem for these fine gentlemen was summed up this week by Sen. Gordon Smith (R., Ore.), who told the Wall Street Journal that the voters back home are giving conflicting advice. "Don't change the rules but give them all a vote. Thanks a lot," he said. His frustration stems from the fact that it will take a Senate rules change to stop the filibustering so there can be a vote. It's hell to be a leader when the people you're following don't give you clear instructions.

The problem for the rest of us is more difficult. The American people are facing the logical outcome of an eighty-year habit of allowing judicial interpretations to substitute for constitutional amendments. Read A Retirement Plan for Sandra Day O'Connor to see how civil rights, women's rights and privacy rights were interpreted into the Constitution by the Supreme Court and technically can be interpreted out again.

And it gets worse. The next time you're out there exercising your freedom of speech, remember that the framers of the Constitution gave your state government a perfect right to arrest you for it. The First Amendment did not apply to the states. It's only because of Supreme Court rulings over the last eighty years that state governments are bound by the provisions of the Bill of Rights.

(Don't believe me? I don't blame you. Read it for yourself right here.)

For decades, the Constitution has been updated by judicial interpretations that define some rights as more fundamental than others. Fundamental rights, the Court has said, may not be abridged unless the state can show a compelling reason to do so.

This is why our constitutional rights are vulnerable to shifts of personnel in the federal judiciary. Not everyone strikes the balance between fundamental rights and compelling state interests the same way.

If the Constitution actually said the Bill of Rights applies to the states, if civil rights and women's rights and privacy rights were in the Constitution in plain language, it would matter much less who was appointed to the Supreme Court. They'd be powerless to interpret those rights away. They might as well say women don't have the right to vote or Prohibition is back in force.

Instead, we are where we are. The Senate confirmation vote for judges is the last chance for the American people to have any say at all in the making of law and policy on an infinite number of issues, from abortion to police searches.

We are having a fight over federal judges because the federal courts have usurped the power that the Constitution gave to state governments. Instead of having fifty separate debates about the appropriate limits on abortion or police searches, we are all forced to sit on the steps of the Supreme Court building and hope that this time Justice Sandra Day O'Connor comes down on our side.

She's a wonderful woman but this is not the deal we signed.



Copyright 2005