Ac­cus­ing Brett Ka­vanaugh of ju­di­cial ac­tivism

Lib­er­als boast they know more about the Con­sti­tu­tion than the au­thors of it

The Washington Times Weekly - - Commentary - By Everett Piper

Su­san Brooks Thistle­waite, pro­fes­sor of the­ol­ogy and for­mer pres­i­dent of Chicago The­o­log­i­cal Sem­i­nary, penned an op-ed for Patheos this past week ex­co­ri­at­ing the Supreme Court nom­i­nee, Judge Brett Ka­vanaugh as “a pre-selected po­lit­i­cal ide­o­logue” of, what she con­sid­ers to be, the my­opic and agenda-driven­right. In her di­a­tribe against Judge Ka­vanaugh, Ms. Thisle­waite went to great lengths to re­mind her read­ers of the dan­gers of all as­pi­rants to the bench who claim to have “no agenda” and who “take a min­i­mal­ist ap­proach” to con­sti­tu­tional in­ter­pre­ta­tion.

“I con­trast [Brett Ka­vanaugh’s] view of the Con­sti­tu­tion with that of Dr. Martin Luther King, Jr.,” she said. “Few Amer­i­cans have un­der­stood the prom­ise in­her­ent in the Con­sti­tu­tion bet­ter than Dr. King … In his ‘I have a Dream’ speech [he] was able, as few be­fore or since, to reach into our con­sti­tu­tional past and pro­claim the deep sense of the words … ”

Ms. Thisle­waite con­tin­ued: “What King un­der­stood about the Con­sti­tu­tion, and in my view … con­ser­va­tives [such as Ka­vanaugh] … do not, is that the Con­sti­tu­tion is broad and in­clu­sive … liv­ing doc­u­ment …”

Cit­ing her ob­jec­tions to Judge Ka­vanaugh as be­ing the same con­cerns she had of Jus­tice John Roberts dur­ing his con­fir­ma­tion process, she con­cludes:

“To me, Roberts’s predilec­tion for con­ser­va­tive ju­di­cial ac­tivism was ob­vi­ous from the time of the hear­ings on his ap­point­ment. It should have been ob­vi­ous to any­body… The same is true of Ka­vanaugh … That, in it­self, should be enough to deny him an ap­point­ment to the Supreme Court. I was right in 2005 about what the Supreme Court would be like un­der the lead­er­ship of John Roberts, and … I’m right about Ka­vanaugh. I know it and I hope you do as well.”

And, thus, Ms. Thistle­waite steps to the front of the pro­gres­sive pa­rade of those who have zero aware­ness of their own self-re­fut­ing du­plic­ity and hypocrisy. How so? What we see in the good pro­fes­sor’s screed is just an­other ex­am­ple of an ide­o­logue call­ing any­one who dis­agrees with her an ide­o­logue; some­one with an agenda lament­ing those she be­lieves “have an agenda”; the pot call­ing the ket­tle black; some­one who ap­par­ently is clue­less to the fact that ev­ery time she points a fin­ger of ac­cu­sa­tion at oth­ers she has three pointed back at her­self; a pro­fes­sor of the­ol­ogy who, it seems, is cu­ri­ously unaware of the very words of Christ: “Physi­cian, heal thy­self.”

It never fails to amaze — When left­ists ar­gue against what they de­cry as “ac­tivism,” they can’t seem to stop them­selves from be­tray­ing their own ac­tivism. Ev­ery time they talk about “liv­ing doc­u­ments” they shine a light on their own dead ideas.

Ev­ery time they cry “wolf” about a con­ser­va­tive’s “ap­petite for power” they ex­pose their own in­sa­tiable, tooth-and-fanged ap­petite for power. Again and again they ap­pear to be obliv­i­ous to the sound of the branch upon which they are sit­ting creak­ing and crack­ing as they fran­ti­cally saw away.

And we should not miss the bit­ing irony of Ms. Thistle­waite cit­ing the Rev. Martin Luther King Jr. to sup­port her claims. Dr. King’s own words are the best re­but­tal to the chrono­log­i­cal snob­bery en­demic in this woman’s con­tention that our na­tion’s sem­i­nal doc­u­ments are lit­tle more than the sub­jec­tive shift­ing sands of a “liv­ing doc­u­ment” that ebbs and flows with the opin­ions and tastes of cul­ture.

In his “Let­ter from the Birm­ing­ham jail” Martin Luther King says: “One may well ask: ‘How can you ad­vo­cate break­ing some laws and obey­ing oth­ers?’ The an­swer lies in the fact that there are two types of laws: just and un­just … How does one de­ter­mine whether a law is just or un­just? A just law is [one] that squares with the moral law or the law of God. An un­just law is a code that is out of har­mony with the moral law. To put it in the terms of St. Thomas Aquinas: An un­just law is a hu­man law that is not rooted in eter­nal law and nat­u­ral law.”

Martin Luther King Jr. clearly un­der­stood what C.S. Lewis told us a gen­er­a­tion ear­lier: You can do no mea­sur­ing with­out a mea­sur­ing rod out­side of those things be­ing mea­sured. Both King and Lewis are telling us the same thing. A static and per­ma­nent trea­tise, as op­posed to a fluid and “liv­ing doc­u­ment” is nec­es­sary to a free and just so­ci­ety.

With­out a stan­dard more im­mutable and en­dur­ing than the opin­ions of those in power, there will never be jus­tice but rather just the com­i­cal pos­tur­ing of pro­fes­sors and politi­cians who fancy them­selves to be our judge.

The pro­gres­sive left’s ar­gu­ment to re­de­fine our Con­sti­tu­tion as a “liv­ing doc­u­ment” is ar­ro­gant. It rests on the premise that they know bet­ter than even the au­thor what the orig­i­nal text means. It also sug­gests they are the “smarter ones” who know best what is good for all of the rest of us stupid con­ser­va­tive rubes who sim­ply want to “call balls and strikes” within the bound­aries of what our Con­sti­tu­tion ac­tu­ally says.

Again and again they ap­pear to be obliv­i­ous to the sound of the branch upon which they are sit­ting creak­ing and crack­ing as they fran­ti­cally saw away.

Everett Piper, pres­i­dent of Ok­la­homa Wes­leyan Uni­ver­sity, is the au­thor of “Not A Day Care: The Dev­as­tat­ing Con­se­quences of Aban­don­ing Truth” (Reg­n­ery 2017).


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