The painful confirmation of Judge Samuel Alito

Columnist Robert Novak reports today that Democratic senators are being pressured by interest groups to filibuster the nomination of Judge Samuel Alito for the Supreme Court, even though the lawmakers don't want to do it.

This sad and painful episode is brought to you by the Incorporation Doctrine, the Supreme Court's eighty-year-long workaround for the annoying problem that the Constitution has never been amended to ban race and gender discrimination, to protect privacy rights, or to make the Bill of Rights apply to state governments.

Interest groups are not wrong to believe that a judicially conservative Supreme Court could erode the civil rights of minorities and women, because those rights have no historical foundation in the text of the Constitution. They were called into being by the fevered imaginations of well-intentioned judges.

It's an unhappy fact of history that Plessy v. Ferguson, the 19th-century Supreme Court decision which declared that "separate, but equal" is all the Constitution requires in the area of racial equality, is an accurate expression of the intentions of the framers of the post-Civil War Fourteenth Amendment.

If you're African-American or female, those guys were not your friends.

This is not to say that judicially conservative Supreme Court justices would try to overturn Brown v. Board of Education and allow the resegregation of the public schools. But, technically, they could.

And, technically, they could overturn Roe v. Wade, another well-intentioned product of fevered judicial imagination, along with a long list of cases from the 1960s that expanded the rights of criminal defendants by declaring that the Fourth, Fifth, and Sixth Amendments applied in state courts.

For example, it was 1961 before evidence seized illegally had to be excluded from trial in a state court. It was 1964 before Americans had the "right to remain silent" in a state criminal trial and 1966 before they had it in a police station. Up until 1968 the states were free to have a judge determine guilt or innocence in a criminal trial, because defendants had no constitutional right to be tried by a jury.

The Supreme Court giveth and the Supreme Court could taketh away.

The remedy for this precarious situation is a series of constitutional amendments that secure the rights we want and erroneously believe we already have. Beating up on scholarly, serious people like Samuel Alito accomplishes nothing.

Read more about it in The Secret Life of the Bill of Rights, just posted at www.SusanShelley.com, and also in A Retirement Plan for Sandra Day O'Connor.


Copyright 2006

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