Should Republicans go ahead and add Supreme Court Justices to head off Democrats

"Due process" and "equal protection" become empty vessals for judicial rationalization

Lino Graglia:

The essential irrelevance of the Constitution to contemporary constitutional law should be clear enough from the fact that the great majority of Supreme Court rulings of unconstitutionality involve state, not federal, law; and nearly all of them purport to be based on a single constitutional provision, the 14th Amendment--in fact, on only four words in one sentence of the Amendment, "due process" and "equal protection." The 14th Amendment has to a large extent become a second constitution, replacing the original.

It does not require jurisprudential sophistication to realize that the justices do not decide controversial issues of social policy by studying those four words. No question of interpretation is involved in any of the court's controversial constitutional rulings, because there is nothing to interpret. The states did not lose the power to regulate abortion in 1973 in Roe v. Wade because Justice Harry Blackmun discovered in the due process clause of the 14th Amendment, adopted in 1868, the purported basis of the decision, something no one noticed before. The problem is that the Supreme Court justices have made the due process and equal protection clauses empty vessels into which they can pour any meaning. This converts the clauses into simple transferences of policy-making power from elected legislators to the justices, authorizing a court majority to remove any policy issue from the ordinary political process and assign it to themselves for decision. This fundamentally changes the system of government created by the Constitution

The basic principles of the Constitution are representative democracy, federalism and the separation of powers, which places all lawmaking power in an elected legislature with the judiciary merely applying the law to individual cases. Undemocratic and centralized lawmaking by the judiciary is the antithesis of the constitutional system.

I took professor Graglia's Constitutional Law course in the late 1960's. He is a smart guy who was improperly denied a seat on the Fifth Circuit by Democrats who did not like his common sense reading of the Constitution. As a professor he had a somewhat intimidating manner, similar to a Marine Drill Instructor, but I thought he was always very fair. He is originally from New York and had the personality of a hurried New Yorker. During one class he called on a woman student who said she was not prepared. This was rarely done in Graglia's class becuase he was likely to cross examine you on what you were doing the night before that was more important than getting prepared for his class. A few minutes later in the class the woman student raised her hand to comment on another question and Graglia asked her, "What do you want to talk about, since you are not prepared?" She responded, that she actually was prepared, she just did not want to talk with him before. Graglia then told the story of a conversation with his wife where he was asking her why some of his students were afraid of him. His told then told him, "Your normal tone of voice is considered a verbal assualt down here in Texas."

I liked the guy. He was one of my favorite law professors. However, by the time I went to law school I had already been through Marine Corps OCS, and been to Vietnam. As another former Marine law student told me, we had been intimidated by experts and law school was that scary.