The man picked by President Bush to be the next attorney general believes the Constitution is a living document and that only the nine black-robed brethren have sufficient understanding of the document to explain to the people what it means.
I heard Alberto Gonzales make this statement with my own ears in a private dinner meeting two years ago.
I was stunned. I was horrified. I was disappointed.
But I was even more upset to see Bush pick Gonzales for the important Cabinet post of attorney general.
Asked why the president has signed seemingly unconstitutional legislation over and over again during his first year and a half in office, Gonzales explained that it is up to the Supreme Court and the Supreme Court alone to determine what actions of government are constitutional.
“The Supreme Court tells us what the Constitution says and means,” he said.
Just as alarming is the fact that, before his nomination as attorney general replacing John Ashcroft, Gonzalez was in charge of screening potential nominees for the U.S. Supreme Court. For those hoping a new Bush-picked court might actually overturn previous questionable rulings such as Roe v. Wade, Gonzales offered little reason to believe that is an objective of new appointees.
“Judges,” he said, “will never be asked about specific previous rulings. Instead, they will be asked whether they respect the rule of law.”
Gonzales let it be known he believes the Supreme Court actually makes law through its precedent-setting rulings. If this were true, of course, the Supreme Court would be the most powerful and least accountable of all three branches of the federal government.
None of this should be surprising, of course. Only months before being appointed by Bush as his top lawyer, Gonzales cast the tie-breaking vote in the Texas Supreme Court against a parental-consent requirement before a minor could obtain an abortion in the state.
The Parental Notification Act was passed by the Texas Legislature in 1999. It required, in most cases, that at least one parent of girls 17 and under be notified before abortions are performed. The law did provide for special circumstances for judicial bypass of parental notification if the minor is sufficiently mature and well-informed about her decision. And Gonzales continually approved such petitions for judicial bypass of parental notification.
Not only is Gonzales the point man in screening all judicial nominees for Bush, he has also himself been rumored to be a top candidate for a Supreme Court appointment.
Clearly Gonzales has exactly the wrong judicial philosophy for times such as these.
Americans don’t need black-robed justices divining the meaning of the Constitution. The Constitution was written by our founding fathers as a document that could be understood by ordinary citizens without law degrees from Harvard or Yale – or even in spite of such credentials.
We have allowed ourselves to be hoodwinked into believing that we are too dumb to understand the basic law of our land – laws that were well-understood 200 years ago by farmers, not just lawyers. We don’t need legal high priests to bring us into relationship with the intent of the framers. Their words, their arguments and their straightforward writings are still around for all of us to examine and analyze for ourselves.
Did the founding fathers really intend for a handful of unaccountable judges to amend the Constitution by judicial fiat? Of course not. The Constitution itself provides the only mechanism for amending the document. Did the founding fathers ever believe that an elite corps of specially trained attorneys would be necessary to interpret the Constitution? Of course not. In fact, every elected official in Washington swears an oath to uphold the Constitution – an act that would be meaningless if only the justices were capable of understanding it and interpreting it. Did the founding fathers ever intend for the Constitution to be a “living” document whose meaning changed with the times? Of course not. That’s what the rule of law vs. the rule of men is all about.
But I’ve got a deal for Judge Gonzales. If he wants to believe in a “living,” ever-changing Constitution, I want to play poker with him under my “living” rules. Given the right time and place, my two-of-a-kind might beat his full house. Somehow I doubt he’ll take me up on such an invitation. And neither should the American people fall for his invitation – and apparently President Bush’s – into a deeper commitment to judicial tyranny.