Liberty-loving Americans rightly celebrated the nomination of Justice Brett Kavanaugh to the Supreme Court. He'll interpret the Constitution according to the text and intention of the Founders, which could keep the feds from encroaching on some areas of American life.
But Prof. Rob Natelson takes a broader view in a recent article published on Townhall.com, and that picture isn't quite as bright. As Prof. Natelson explains, justices like Kavanaugh won't overturn years of bad decisions that impinge upon the right to self-governance and expand the power of the federal government.
Although surprises do happen, everything in Justice Kavanaugh’s background suggests that Senator Collins was right that he probably won’t shake up things much. This would not be a problem if all existing constitutional jurisprudence were at least arguably consistent with the document it purports to interpret. In that kind of situation, adhering precedent is a judicial virtue. But much constitutional jurisprudence is merely an aggregation of 20th century decisions issued by “progressive” justices with little real foundation. There is no virtue in merely perpetuating and compounding mistakes.
In practice, moreover, we have learned that respect for precedent goes only in one direction. Senator Collins—and many others—argue that the precedent set in Roe v. Wade should be respected because it is 46 years old and people have relied on it. Yet they celebrate Brown v. Board of Education, the school integration decision that (rightly) overturned a 58-year precedent. It wasn’t long ago that those same folks urged the Court to impose on the states a definition of marriage that, literally, had no historical precedent at all. Now that they have won, they maintain that the Court’s decision in Obergefell v. Hodges is inviolable, even though it is only three years old.
The real solution to federal overreach lies in Article V of the Constitution, which allows the states to convene a Convention of States to propose amendments to our founding document. Prof. Natelson continues,
The Founders foresaw the possibility of federal overreach, and their most important prescription for it was constitutional amendment. Not only did several Founders say so, but that is how the founding generation responded when the Supreme Court overreached itself in the 1793 decision of Chisholm v. Georgia. They passed the 11th amendment, which reversed Chisholm and, more importantly, chastened the judiciary. More than two hundred years later, the Court is still careful to respect the 11th amendment.
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