James Leroy Wilson's blog

Sunday, September 04, 2005

William Rehnquist, RIP

On the passing of Supreme Court Justice William Rehnquist:

Although I am libertarian ideologically and think we'd have been better off under the old Articles of Confederation instead of the Constitution, I am an arch-conservative when it comes to Constitutional politics and law. Two reasons:

1. Being the foundation of our political order, I would rather we abide by what it says, then have the Supreme Court pretend that it means something other than what it says. If we allowed the latter, then all branches of the government will interpret the Constitution loosely, or ignore it entirely. That paves the way to a totalitarian state.

2. We are on that path to a totalitarian state, precisely because our Courts and the government as a whole has mangled and ignored the Constitution, and an actual Constitutional government would be far better than what we have now.

As an associate Justice, Rehnquist along with Byron White voted against the Roe v. Wade decision. Even thoughtful abortion rights proponents acknowledge that Roe was very poorly reasoned and had no justification within the Constitution itself. Rehnquist thus was on the right side of the greatest mistake in Supreme Court history, one which has divided the nation like no other issue, poisoned national politics, mangled the Constitution, and by-passed the republican legislative process.

Any of Rehnquist's other accomplishments and wise decisions pale in comparison. Since the Constitution belongs to the people, and since interpreting it is a political act, I am no fan of judicial review. Congress has the responsibility to not pass unconstitutional laws, and Presidents have the responsibility to veto them. In our system, it ought to be their call.

So here's my opinion of Rehnquist's record, which would hold for any justice: Bravo for whenever he refused the ring, whenever he refused to invoke the fraudulent "judicial review" power to strike down local, state, or federal laws. And shame on him for when he did use that power.

But we must never forget that, in the most important case in his career- Roe- Rehnquist did the right thing.

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