The characterizations we most commonly hear in contrasting liberal and conservative judges tend to use phrases such as “activism” vs. “restraint,” and approaching the Constitution as a “living document” vs. focusing on “original intent.”
However, I think asking a more fundamental question sheds light on why our society’s most vulnerable – the poor and otherwise disenfranchised – need conservative judges. We should be asking: “What is the purpose of the law?”
In this sense, I would contrast a conservative-vs.-liberal approach as the former viewing the core purpose of the law as individual protection and the latter relating to law as a tool for social engineering.
In the conservative approach, the law we have is a product of the wisdom of the ages, and the only surprises today are how the law might apply in new situations. In a liberal world, we live forever in a social experiment and our reality is the result of whatever thinking happens to be in vogue among the social engineers.
Using this approach, I hereby declare myself to one and all that I’m a conservative.
Citizens don’t need their lives defined by others. They need protection. And the vulnerable particularly need protection. Protection means having a legal code that has integrity and having judges who see their job as relating to that law to protect people from the unjust encroachment by others. I would say a society of tyranny is one in which it is never clear what the law is and how I am protected. Ironically, this also characterizes a liberal society.
This couldn’t have been driven home more clearly than by the Supreme Court’s recent eminent-domain decision in the Kelo v. City of New London case. The Fifth Amendment exists because of the appreciation that the purpose of law is the protection of individuals. However, there does exist a social reality. So, indeed, there are situations where, if individuals are justly compensated, government may take their property for a pressing public use – like building a road.
However, creative judges over the years have transformed the sense of what public use is to justify taking property from one set of private individuals and turning it over to another set of private individuals who intend to use the property in a fashion that is more appealing to these judges. In this Connecticut case, that would be commercial development.
It is mind-boggling to think that the Supreme Court has ruled to use the law, not to protect individuals, but to evacuate them from their homes so a business can come in and do its thing.
And this decision was carried out thanks to the Supreme Court’s liberals. The conservatives voted against it. It says it all that Clarence Thomas wrote a dissenting opinion and that the NAACP was there on his side!
A recent Cato Institute study reports on the magnitude of confiscations that have taken place over the years under so-called “urban renewal” programs. The report cites a study estimating that, between 1950 and 1980, about 1 million families, possibly around 4 million individuals, were displaced from their homes by federally sponsored urban-renewal condemnations, inflicting huge social and economic costs on these communities.
I, myself, fear for my own family’s property. My granddad, who used to say that you need two things to stay free – property and a gun – acquired several hundred acres in South Carolina through the sweat of his brow. This man, one generation away from his slave predecessors, struggled and succeeded to get his few acres on which he could be the free man he longed to be.
Now I fear that our family’s legacy is not secure. The government can show up in the night – in a fashion not all that different from the world of Saddam Hussein that our American troops have fought and died to depose – to take away our property. Just compensation? What does that mean? How do you compensate someone for their roots, for the home and land that they love?
The fund apparently that has been set aside to compensate the 15 holdouts in New London is $1.5 million. Since they were roughly 10 percent of the total lot holders, I would estimate that total compensation for the displacement would be about $15 million. The value we put on freedom is becoming cheaper every day.
However, to return to the general from the particular, this wide-ranging interpretation of government takings is rooted in the same school of thought – a fundamentally liberal school of thought – that sees the law as a tool of social engineering rather as the tool for protecting citizens.
The Supreme Court justices who have just used our Constitution to justify taking property from one set of private citizens and turning it over to others are the same jurists that liberals are in love with because they carry their water on issues like abortion and affirmative action. Both of these issues are, of course, pure social engineering, and in the former case, departing from using traditional law to protect life and inventing new law to destroy it.
Americans, particularly our most vulnerable Americans, need the protection of law. This is why we need great conservative judges.