An Open Letter to President Obama
With the recent announcement by Justice Souter that he will retire at the end of the current term of the Supreme Court, you will be nominating your first appointee to the highest body of arbiters in the land. I urge you to consider your choice carefully.
When you gave your oath of office, you swore to “preserve, protect, and defend the Constitution of the United States.” I hope you will take a few minutes to consider what is built into that statement.
We are a nation unique in the history of the world. A nation is a body of people banded together for the common good, all espousing an ideal on just what the common good is, but we are unique in that our ideal is not service or fealty to a lord or master, to a race or tribe, but to freedom. We are united in our conviction that the only life worth living is one lived free. This dictum was codified in the Constitution, the document defining our republican form of government and expressing our will to freedom. In a very real sense, the Constitution is the nation, as it is the set of principles to which we are all, as Americans, committed. It is what defines our nation, and so is in an extraordinarily pertinent sense the nation itself. In brief, that is what you swore to defend, preserve, and protect.
The Constitution is thus at once the highest law of this nation, the definition of the nation, and core dicta concerning how we the nation want this nation and its government to behave and interact. A system exists to alter this core set of principles, to expand or retract from them, and that power is explicitly reserved in the Constitution to the people and their elected representatives. That role is wholly separate from that of the judiciary. The days when the king and his court existed both as the crafters and arbiters of the law are gone, replaced in the codex of this nation by a system of government where those functions are assigned to two separate branches of the government. It is not within the purview of the Supreme Court to alter or modify the Constitution in any way, shape, manner, or form. The justices can no more reshape by fiat the Constitution or its meaning than they could the nation which it defines. It is the guide by which and under which they must arbitrate; outside that stricture their words are absent the force of law.
Being yourself a former professor of constitutional law, I doubt very much that this line of argumentation is new to you. Nonetheless, you have in the past expressed a conviction that the Constitution and laws of this great nation are not all that judges should use to decide their cases. They should, you have said, also allow their personal life experiences, their empathy, to color their decisions, so as to achieve social and economic justice, not merely legal justice. But allow me to reiterate: the judiciary is under our present system of government cut off from the power to impose socioeconomic justice in a given situation. That power is reserved to the people and their elected representatives. It is not the place of a justice of the Supreme Court, or any lower court for that matter, to rule in a way inconsistent with legal justice; that is the full extent of what they are empowered to do, and I humbly submit that any judge who does or would do otherwise is not of the proper judicial temperament to sit on the highest court in the nation. The question of whether a justice of the Supreme Court will rule with his head or his heart is paramount; all other considerations (race, gender, sexual orientation, creed, etc.) are moot.
Your regard (or lack thereof) for the Constitution as a charter of negative liberties, a constraint upon the power of government to accomplish things for the people, is immaterial to the point. When you gave your oath of office to the people of this great nation, you swore to uphold the Constitution. There were many of us on the right who doubted at the time that you could take that oath in good faith, given the statements you had previously made regarding things you found wrong with the Constitution. Mr. President, we would very much like to be proven wrong in that regard.
Let me be quite clear on this point, Mr. President: if you appoint a justice to replace Justice Souter knowing and in fact intending that this new justice will use his emotions and life experience to decide cases to the detriment of the Constitution, if you appoint a justice who will abrogate the Constitution to rule as he sees fit, you will be foresworn of your oath to this nation as its president.
You are President, and the people did vote for you in such numbers as to give you a mandate of sorts, but the will of the people expressed in your election cannot abolish or enfeeble the Constitution. You are bound, much though I’m sure it chafes, to a specific duty. The manner of your performance of that duty is up to you, but that notwithstanding, you have sworn to do it. Appointing a justice who will use anything but the laws of this nation and the Constitution which governs them to decide cases will place you in direct violation of that duty.
Aristotle once said, paraphrased, that the law is reason free from emotion. Please, Mr. President, appoint a justice who will embody that maxim. Please, do your duty.
Veritatem In Christo Per Omnes Ad Maiorem Dei Gloriam Ad Petendum,
Christopher D. Berger