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September 22, 2005

Hegel and other judicial activists

Paul Mirengoff and Scott Johnson, two-thirds of the Power Line team, have written a fascinating article in the Weekly Standard trying to make the case that the concept of a "living Constitution" that liberals rely on derives from Hegel, through Woodrow Wilson. It's a fascinating, well written piece.

Still, while I've never read Hegel, and I'm familiar with little more than the fact that "David Hume/Could outconsume/Schopenhauer and Hegel," I think Mirengoff and Johnson's theory suffers from the usual problems of grand theories: the facts simply can't keep up with the theory. I have two reservations, which I'll summarize here.

First, there was a time when conservatives on the Supreme Court were also invoking the living Constitution, even if they didn't call it that and even if they undoubtedly detested Hegel. The whole Lochner line of cases, in which "substantive due process" was used to invalidate liberal state legislation, principally in the area of labor relations and contract, is based on the notion of a living Constitution. When you invoke a concept that is basically a contradiction in terms, you are not applying the Constitution as written. (I know I'm offending a whole bunch of libertarians with this paragraph. Just say to yourself, "That fool doesn't know what he's talking about." It'll make you feel better, and it's probably true.)

Second, I would invoke Occam's Razor. You don't have to come up with a complicated theory. You can explain the whole problem by observing that the federal judiciary is drawn largely from the legal elites. (Just take a look at the states in which there's "merit" selection. The candidates are judged by people just like themselves, all in the legal establishment.) Congressmen come from all walks of life. God knows the President can be some dumb yokel from Texas, right? But the legal elite in the judiciary know better than all of them. They know better than you. And, most important, they know better than some dead white guys who wrote the Constitution more than 200 years ago.

So I'm not really rejecting the Hegel-to-Wilson-to-Breyer double play. I'm just not sure it's complete, and I'm not sure it's not just too complicated.

UPDATE (9/23): Ruth Bader Ginsburg proves my point, taking the opportunity to advise the President to appoint a woman, but noting that "any woman will not do."

There are "some women who might be appointed who would not advance human rights or women's rights," Ginsburg told those gathered at the New York City Bar Association.
And: "I have a list of highly qualified women, but the president has not consulted me," she added during a brief interview Wednesday night.

As Ed Whelan explains at Bench Memos:
Beyond the inappropriateness of Ginsburg’s comments is — not to put too fine a point on it — their arrogant stupidity. Ginsburg obviously thinks that a justice has a roving authority to “advance human rights or women’s rights,” irrespective what the Constitution and other federal laws actually mean. It is equally obvious that she sees her own ideological agenda — which apparently includes same-sex marriage, taxpayer-funded abortion on demand, prostitution, bigamy, and co-ed prisons — as the proper way to advance those rights.
Hegel? I don't think so. She just knows better than you, way better.