The facts for this story, but not the legal conclusions, come from a press release from the ACLU concerning the retirement of Justice Stevens. The most interesting aspect of the ACLU praise for this hard liberal Justice who felt no compunction to obey the Constitution, is what it does not say. Nowhere in five paragraphs of praise does the word “Constitution” appear.
The release praises the Justice because he “promoted racial equality, supported gay rights and defended a woman’s right to choose. He wrote the first decision recognizing free speech rights on the Internet and just a few years ago concluded that the death penalty is unconstitutional.” All of these are, of course, political rights that the ACLU favors.
The interesting thing about the death penalty is that the Court itself has never found the death penalty to be unconstitutional per se. It would have grave difficulty reaching such a conclusion, since the Constitution expressly mentions the possibility of imposing that penalty.
So, the approach of Justice Stevens, like that of the ACLU itself, is to make the use of the death penalty as difficult and expensive as possible, so the public officials chosen by the people will be reluctant to try to use this available punishment for the most heinous crimes.
The press release praises Stevens for being “fiercely committed to the rule of the law and the Court’s role in preserving it.” Even the ACLU is unable, without laughing, that Stevens was committed to protecting and preserving the Constitution of the United States. The ACLU would never dare launch a frontal attack on the Constitution. But what it does say about issues while not mentioning the Constitution itself, is an implicit attack on the Constitution.
Similar problems appear in the hearings now being conducted by the Senate Judiciary Committee on the nomination of Goodwin Liu. Liu believes, like Stevens, that he is smarter than ordinary citizens, or even the people who wrote and ratified the Constitution and its Amendments. Therefore, he has the right to change the meaning of the Constitution in order to “do good” as he sees it, and to “modernize” that document.
The failure to put the Constitution first, to obey and enforce it, is as common in the Senate, as it is in most law schools such as the one where Professor Liu teaches. These are the kind of judges that the ACLU prefers who will not allow the Constitution to get in the way of their good ideas. But in taking that position judges also attack the very heart of the American experiment in government, the sovereignty of the people themselves. The power to amend the Constitution belongs only to the people, as provided in Article V. The Constitution as amended is the distilled voice of the people as most recently expressed in the last amendment in 1992,
That is what such judges, with the full support of organizations like the ACLU, are doing, in clear violation of their oaths of office.
Story on the Net: http://www.commondreams.org/newswire/2010/04/09-4