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Why Kavanaugh's Constitutionalism Could Aid Minorities

Image: Why Kavanaugh's Constitutionalism Could Aid Minorities

Detail of the U.S. Supreme Court building in Washington, D.C. (Jixue Yang/Dreamstime)

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Thursday, 12 July 2018 11:45 AM Current | Bio | Archive

Judge Brett Kavanaugh, President Trump’s nominee to replace Justice Kennedy’s "swing" vote on the U.S. Supreme Court with an originalist, constitutionalist justice, is a gift to America’s minority communities.

Why?

Because the U.S. Constitution may be the single best guarantor of minority rights ever devised by humankind.

A constitutionalist court is one devoted to fulfilling the terms of that guarantee.

A constitutionalist judge is a jurist understanding the wisdom and necessity of a judiciary designed as both the weakest branch of government and free from political considerations.

Without a constitutional check, democracy is simply mob rule backed by the power of government.

The genius of the Constitution is its elevation of certain fundamental rights above majority rule. In a dictatorship, the leader with the most guns gets to write all the rules.

In an unchecked democracy, the leader with the most votes gets the guns — and then gets to write all the rules. In either case, life gets miserable fast for those who like to live their lives a little differently — or who simply are a little different themselves.

The Bill of Rights guarantees our rights to free speech, a free press, the free exercise of religion, and the right to bear arms. It guarantees us freedom from unreasonable searches and seizures, and due process prior to deprivation of life, liberty, and property.

It even affirms that the people retain certain rights beyond the enumerated few.

As reasonable and as minimal as those rights should appear, most of them are under direct attack from the left – looking and sounding very much like a mob these days.

The New York Times recently reported about progressives eager to stifle all speech they call "hateful" meaning, of course, anyone with whom they disagree. Similarly, the left decided years ago that the free exercise of religion was a threat to democracy; in their view, merely a slogan that excuses bigotry — again, the charge they levy against anyone with whom they disagree.

The same left is eager to confiscate the firearms of citizens interested in protecting their families, and cavalier about confiscating property when redistribution serves their agenda of "social justice."

This leftist intolerance and corruption is deeply embedded in the culture of academia — including law schools. Over time, it has permeated Supreme Court jurisprudence in ways dire and threatening to the Bill of Rights.

Within the past few months alone, the four ideologically leftist justices on the high court have written passionately about the need to coerce people to say the "right" things about abortion, and to force people to fund union-run lobbying that they didn’t support.

In recent years, they’ve vilified Americans who organize their lives as they believe God wants them to live.

They’re fine forcing people to buy products they don’t want.

They don’t believe that the right to bear arms exists to protect individuals.

They pervert the Fourteenth Amendment’s prohibition on racial discrimination by demanding racially discriminatory practices in the name of "diversity." They corrupt the Constitution by granting presidents they like unfettered powers, while supporting any judge anywhere in the country willing to override presidents or policies they dislike.

All of these positions threaten minority rights.

Astoundingly, leftist jurists insist that the Constitution endorses — at times, compels—them. How? Through a doctrine call the "living constitution." It’s a clever name, but misleading. Leftist constitutional law is not only alive, it's infinitely pliable; its evolutionary path is arbitrary, dictated only by the whim of enlightened elite opinion.

Constitutionalists like Judge Kavanaugh do not call for a "dead constitution." They simply insist that when contemporary challenges raise a new question of constitutional law, the Court must peer through the brilliant "original" lens to find the answer. That grounding ensures loyalty to the Framers’ committed elevation of fundamental freedoms above policy outcomes.

This philosophical difference goes to the heart of one of the left’s many spurious attacks.

Several years ago, in a law review article, Judge Kavanaugh opined that a president burdened with lawsuits and criminal investigations would be unable to execute the office effectively. He urged Congress to pass a law deferring all such charges against a sitting president. He thus expressed an opinion about public policy on an issue that might arise while he is on the court.

Under such circumstances, a believer in a living constitution might be inclined to impose his preference on American law. As a constitutionalist, however, Kavanaugh will look only to the Constitution for an answer.

Ironically, contrary to his detractors, his call for congressional action suggests not that he would cite law to shield President Trump should the issue come before him, but that he believes the law currently fails to provide that shield.

Such past expression of policy preferences should indeed be grounds for recusing a believer in a living constitution. But there is no rational reason for it to lead to the recusal of a constitutionalist. Kavanaugh’s critics defame him by suggesting that he shares their disdain for the U.S. Constitution.

All minorities need to know that our rights can withstand a change in power and a shift in public opinion. Only the Constitution can provide that guarantee. Only constitutionalist Justices, like Judge Kavanaugh promises to become, can secure the Constitution.

Once again, America’s minorities should be thanking God for President Trump.

Bruce Abramson is the President of Informationism, Inc., Vice President and Director of Policy at the Iron Dome Alliance, and a Senior Fellow at the London Center for Policy Research. Jeff Ballabon is CEO of B2 Strategic, a Senior Fellow at the American Conservative Union's Center for Statesmanship and Diplomacy, and an advisor to Donald J. Trump for President, Inc. To read more of their reports — Click Here Now.

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Minorities need to know that our rights can withstand a change in power and a shift in public opinion. Only the Constitution can provide that guarantee. Only constitutionalist Justices, like Judge Kavanaugh promises to become, can secure the Constitution.
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Thursday, 12 July 2018 11:45 AM
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