'76 Blog

(CCU Faculty) In the landmark abortion case of Roe v Wade, the late Chief Justice Rehnquist (then Associate Justice) wrote a dissent opposing the majority’s opinion that the Fourth Amendment’s prohibition against unreasonable search and seizure included the right for a woman to have an abortion.  Justice Rehnquist was indeed correct in his reading of the Bill of Rights.  What Rehnquist did not do, however, was recognize the fundamental right to life of a fetus.  In fact, had Rehnquist managed to forge a majority around his interpretation, thus siding with the Texas abortion restrictions, there would have been no prohibition of abortion in America. The issue simply would have been reserved to the individual states to decide for themselves. Justice Rehnquist, a conservative constitutionalist, refused to find any doctrinal basis on which the United States Constitution was supported.  His starting point for judicial review rested solely on whether or not the text of the Constitution explicitly prohibited or prescribed a particular act.  Thus the “rightness” of laws for Rehnquist was based entirely on the consensus of the people as expressed in their Constitution. In the Lincoln-Douglas debates of 1858, Senator Stephen Douglas famously stated: “I don’t care whether slavery is voted up or voted down.”  For Douglas, all that mattered was that the will of the people should prevail.  The fact that this will might be contrary to the Declaration of Independence’s principle of equality and the natural law rights described by Jefferson was of no concern to Douglas.  For Douglas, the consensus of the people determined what was right and wrong. Tragically, the jurisprudence of the late Chief Justice Rehnquist was no different from the political theory of Senator Douglas.  In an article published in 1976 in the Texas Law Review, Rehnquist wrote of his judicial philosophy and his refusal to find any basis for his reasoning beyond the text of the Constitution: “Beyond the Constitution and laws in our society, there is simply no basis other than the individual conscience of the citizen that may serve as a platform for the launching of moral judgments.  There is no conceivable way in which I can logically demonstrate to you that the judgments of my conscience are superior to the judgments of your conscience and vice versa.”  Rehnquist’s argument is that my opinion on the wrongness of abortion (or slavery) is merely my subjective judgment, certainly not superior to the view that slavery and abortion are right.  As such, these “judgments of conscience” must be excluded from our evaluation of the law. Adherents to a strict constitutionalism that is not grounded in the natural law (The Laws of Nature or Nature’s God), when challenged to explain why one should not have absolute power? over another or why we should respect the life of a fetus, can only point back to the text of the Constitution; and when the text is silent, to whatever the majority will says.  Based upon this line of reasoning, the “rightness” of a Constitution or a law rests entirely on the will of the majority (in the case of the Constitution, a super majority).  As has been proven too many times in history, the presence of a majority will is no guarantee of that will being “right”. In his inaugural address, Thomas Jefferson stated that in order for the will of the majority to be right, it must be reasonable.  This suggestion leads us to both a conclusion and a question.  First, we can conclude that Jefferson believed that the consensus of the majority will may not be right at times, and therefore should not be followed. The question is, should we determine what standard we use in order to define whether the will of the majority is reasonable or not? Abraham Lincoln relied on the standard that Jefferson and the Founders had established in the Declaration of Independence:  All men are created equal and all are entitled to their God-given rights of life and liberty.  Reflecting on Jefferson’s text, in 1858 Lincoln stated: “All honor to Jefferson—to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times.”  The Nature law as understood by Lincoln is these truths laid down in the Declaration.  These truths are the foundation on which our Constitution is based.  Justice Rehnquist failed to recognize these self evident truths.  Had he been able to do so, he would have found that even when our Constitution is silent on specifics, a more fundamental law is a source from which we can judge the “rightness” of our laws.

In an audacious power grab, the Colorado Supreme Court recently embraced, by a 4-3 decision, a judicial doctrine that would relegate the other two branches of government — and the voters — to a perfunctory role. The high court's activist majority used Lobato vs. State not only to intrude on the legislature's constitutional authority to determine funding for public schools; it also self-servingly suggested that no policy decision is off-limits to judicial review. So much for separation of powers, consent of the governed, or checks and balances.  In fact, the Lobato ruling leads to the obvious question:  "What's left to check or balance the court?" The majority opinion, written by Justice Michael Bender, represented such a stark — and sometimes disingenuous — departure from established precedent that Justice Nancy Rice, who frequently sides with the activist majority, instead joined two originalist justices in dissent. A collection of school boards and parents initiated the lawsuit in 2005, contending the legislature should increase K-12 education spending by as much as $500 million a year — as if the state could find $500 million under the couch cushions. Two lower courts dismissed their claims, finding that the state constitution provides no quantifiable standard — other Amendment 23, which the legislature has thus far implemented — to determine funding sufficiency.  Thus, the courts ruled that K-12 spending is a "political question" which the constitution specifically places within the authority of the legislature and beyond the court's purview. However, the supreme court's majority selectively quoted and distorted the law and its own precedent.  Even more significantly, the majority argued that courts can render judgments even when the law is silent, provides no quantifiable standard or confers specific authority to another branch of government. Bender's decision devotes five pages mostly to quote law school textbooks and journals — which have no force of law — to argue that the "political question doctrine … should be abolished." Incredibly, Bender — joined by Chief Justice Mary Mullarkey and Justices Alex Martinez and Gregory Hobbs — reasons that failure to hear the plaintiffs' claims would "give the legislative branch unchecked power."  Is the majority so infatuated by judicial supremacy as to forget that the legislature is routinely checked by the governor's veto and by citizens' initiatives? In her dissent, Justice Rice demonstrates that a judge can be liberal in applying the law while still acknowledging that even the courts must be constrained:  "Chief Justice Marshall noted that without the restraints imposed by the political question doctrine . . . the other departments would be swallowed up by the judiciary." Rice — joined by Justices Nathan Coats and Allison Eid — argues that, when the constitution says "the general assembly shall . . . provide for . . . a thorough and uniform system of free public schools," authority is clearly conferred upon the legislature and not the courts. She also scolds the majority for twice distorting the court's 1982 Lujan ruling on school finance. Bender asserts that Lujan explicitly established the court's authority to review public school finance.  Rice corrects the record to show that the Lujan court said, "[O]ur sole function is to rule on the constitutionality of our state's system" (emphasis added) not "whether a better financing system could be devised." Rice goes one better in dismantling the majority's argument that "the Lujan court engaged in a rational basis review of whether the state's system violated the 'thorough and uniform' mandate."  She retorts: "This is simply untrue – the Lujan court never references any test for 'thorough and uniform,' uses the words 'rational basis,' or posits any standard of review." In fact, the Lujan court left those determinations to the legislature because it was "unable to find any historical background to glean guidance regarding the intention of the framers." That's the important distinction between originalist judges — who believe their job is to apply the laws as written and to seek guidance from those who authored them — and activist judges — who believe their job is to twist the law to suit their own political agenda and to consult unelected, unaccountable academics for inspiration. Ironically, Bender, Mullarkey and Martinez stand for retention in November 2010.  Perhaps then voters will exercise their own "checks and balances." Mark Hillman served as senate majority leader and state treasurer.  To read more or comment, go to www.MarkHillman.com.

What should be the relationship of church and state?  The founder of the church, Jesus Christ, proclaimed that we should “render unto Caesar the things that are Caesar’s, and render unto God the things that are God’s. The reason we could do both was because His “kingdom was not of this world.” We could be good citizens of the Roman Empire and good citizens of God’s kingdom at the same time. Many Jews in Jesus’ day wanted to rebel against Roman authority, but Jesus told his followers to pay their taxes to Rome. Christ’s followers in the first few centuries of the church also got this perspective correctly. The Roman Empire demanded that everybody worship Caesar as God, or at least burn incense to him as a sign of loyalty to the state.  Because the early Christians refused to do this, they were burned at the stake or thrown to the lions.  Those on the left wanted to overthrow the state, and those on the right wanted Christians to worship the state, but Christ and his early church had the right perspective. In Britain 300 years ago there were two political parties, the Whigs and the Tories. The Whigs emphasized personal freedom and the rights of man. The Tories emphasized tradition and divine right monarchy.  Radical Whigs on the far left were mostly deists pushing to overturn the monarchy.  At the other extreme were radical Tories, who demanded that everybody submit without question to the king, as a sign of their loyalty to the state. My doctoral dissertation was on this struggle between the two extremes, and of those who tried to get church and state in the right perspective.  It was John Locke who had that correct perspective, reminding us of the need for personal liberty, freedom of conscience and religious toleration, yet also that we should fulfill our duty to the state, who held power by “the consent of the governed.” Locke encouraged an end to the reign of the tyrant James II, replacing it with that of William and Mary, who agreed to freedom of conscience in religious toleration and to a more limited government in the English Bill of Rights. Our founding fathers also experienced this tension. On the left was Thomas Paine, a radical deist calling for radical change.  On the right were the Tories demanding tradition and insisting that we should not rebel against the king and the established church.  The founders proceeded cautiously, entreating the king to respect individual freedom, and rebelling only when it became obvious that there was no other way to end tyranny.  They also insured that there would be no established church or official prayers. Today America is again torn by the extremes of radical change and disbelief on the one hand and a closely entangled church-state relationship on the other.  While one side wants rebellion (figuratively speaking) and a rejection of all things sacred, it sometimes seems the other wants to wed church and state again in a new Roman Empire or Tory divine-right monarchy.  We should follow Christ, and “render unto Caesar the things that are Caesar’s, and render unto God the things that are God’s.”  We should not allow Caesar to dominate the church, nor allow the church to dominate the state. We should respect personal freedoms, and serve the kingdom of God.  While the Romans and the Tories wanted the church to submit to an emperor or king, let us follow the teachings of Christ and the founding fathers by maintaining a separation of church and state.

On September 17, 1787, thirty-nine of the delegates at the Constitutional Convention, having met for four long, hot, and humid summer months in Philadelphia, had finally completed their task.  On that day, they lined up and signed their names to the completed document. The debates had often been heated and the disagreements significant, concerning the powers of the national government, the representation of the states, and, of course, slavery.  Yet in the end, the final version was a Constitution that has endured for over 221 years.  It is the longest surviving, working constitution in the world today. The Constitution is indeed worthy of respect and honor because of its long survival. But survival of a regime and survival of a constitution is not good in and of itself; just as survival of a tradition isn’t good for its own sake.  The perpetuation of a tradition or a Constitution must be judged on what it is, not simply on its endurance.  We can all think of many examples of governments around the world that are surviving, but that we (as well as its citizens) would certainly prefer to see fail. Abraham Lincoln delivered the eulogy for a man he admired greatly: Henry Clay. Clay was an early leader of the Whig party, to which Lincoln was a member before the Republican Party emerged.  In his eulogy, Lincoln said of Clay: “He loved his country partly because it was his own country, and mostly because it was a free country; and he burned with a zeal for its advancement, prosperity, and glory, because he saw in such the advancement, prosperity, and glory of human liberty, human right, and human nature. He desired the prosperity of his countrymen, partly because they were his countrymen, but chiefly to show to the world that free men could be prosperous.”    Henry Clay was patriotic toward his country.  But his patriotism was not a blind faith loyalty based simply on the fact that he resided here.  It was a loyalty to both the principles of the founding and the Constitution crafted from those principles.  Lincoln shared this loyalty and dedicated his presidency to the preservation of the Union and its Constitution.  However, Lincoln would have been the first to admit that had the Union not been worth preserving (because of what it was about), it certainly wouldn’t have been worth the loss of over 600,000 lives in the Civil War in order to preserve it.  So what was and is so significant about our Constitution that Lincoln was convinced that waging a lengthy war at the cost of so many lives was indeed worthwhile. When we discuss the significance of the struggle to preserve  the Constitution, we need to be clear on two things: first, what exactly are we preserving; and second, what is the nature of the attack that is being made against it. Be clear, our Constitution is under attack.  The center of the attack is made against the two things Lincoln thought were so important to save: the Constitution and the concept of the “rule of law” that is essential to the Constitution’s preservation.    The method of attack is two-pronged. The first is to debunk the text and original meaning of the Constitution.  The second line of attack argues that we can re-interpret the text whenever we deem it necessary and when it suits our purposes. Today there are two primary and competing schools of thought when it comes to Constitutional interpretation. The first school is described well by former United States Supreme Court Justice William Brennan.  In a speech delivered at Georgetown University in 1985, Brennan claimed that “the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”    What Brennan was in fact saying was that the text of the Constitution really has no meaning, or a least no meaning other than what we happen to decide to give it today, regardless of whether our modern interpretation has any resemblance to the intent of its authors.  This perspective is also unconcerned as to whether or not our interpretation will be completely different in 50 years, 20 years, 1 year, or even tomorrow.  What Brennan describes is a school of constitutional interpretation that favors a “living” or “evolving” constitution.  The meaning of the text is no more than what we choose to give it, and we grant ourselves great latitude to change our interpretation any time public opinion has changed.  It is this school of interpretation that has given us the remarkable constitutional “reasoning” in several recent cases of, “the evolving standards of decency.”  This argument has been put forth most notably in recent capital punishment cases.  To see how this works, considering two recent cases will suffice.  In 1989 the Supreme Court concluded that it was constitutional to execute individuals with low I.Q.s.  The majority concluded this because there did not exist at the time a consensus among the states as to whether or not such practice would offend the 8th Amendment. However, just a few years later in 2002, the Supreme Court concluded that we could no longer continue this practice.  Why? Because of the “evolving standards of decency.”  According to this interpretation of the Constitution, the 8th Amendment prohibition of cruel and unusual punishment is completely dependent upon public opinion!  Thus the rightness or wrongness is not determined by the text of the constitution, the principles behind it, or the intent of its authors.  Rather, it is simply the adaptive interpretation as exhibited through public opinion.  This understanding assumes that constitutional interpretation is simply majority will and that this will determines the rightness or wrongness of something.  Of course, if we follow this argument to its logical conclusion, the institution of slavery was right, as long as it had popular support! The competing school of interpretation argues that rather than having a living and evolving meaning, the Constitution has an “original intent”, and that American jurisprudence is based upon it.  With this understanding, our application of the laws, and interpretation of the Constitution is bound by the intentions of those who ratified it.  Obviously, this interpretation is in stark contrast to the constitution of Brennan that has no “static meaning”, and is forever adaptable. If we view our Constitution as meaning only what we want it to mean, when we want it to mean that, we are violating the principles of rule of law and constitutionalism.  Rule of law is based upon the need to have consistency of law, equal treatment of the law and everyone being “under” the law.  Central to the need for consistency of law is that the law, and more importantly, the Constitution from which our laws are crafted, has a sense of permanence that is not easily altered.  I am, of course, not making the argument that our Constitution is perfect, nor am I saying that improvements to it are impossible.  The point is that there is a proper and deliberate method of changing the Constitution through amendments.  The answer to changing the Constitution is not to have five Supreme Court justices simply redefine the terms for us, nor for we as the citizens of the Constitution to be disinterested or apathetic and idly watch as infringements on our Constitution take place through executive and legislative fiat. Lincoln warned us that the greatest threat to the Union would not come from an outside force, but instead, from within.  In his famous Lyceum Address, he stated:  “At what point, then, is the approach of danger to be expected? I answer, if it ever reach us it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher.”   The title of Lincoln’s Lyceum address was: “The Perpetuation of Our Political Institutions.”  His audience was somewhat stunned that he would question the survival of the Union and her constitution.  When he delivered his speech in 1838, most of his audience had concluded that the country was a well-oiled machine with no chance of faltering.  Of course, it was not long after that speech that the Union did face its crisis of survival.  Lincoln believed that the seeds of the movement toward secession, when the South refused to accept the results of the constitutionally held election of 1860, were sown decades earlier, when a growing mindset of disobedience to law and a weakening of the loyalty to the Constitution was growing. My point is not to be an alarmist.  Rather, it is to have us return to Lincoln’s concern for the nation: does she reverently hold to the hard work laid out by the founding fathers, the principles of the Declaration, and the Constitution created in order to establish a More Perfect Union?  Failing that devotion, a breakdown of constitutionalism and rule of law are certain to take place.   

  How much of America's total tax burden is now borne by a tiny fraction of our total population? An astonishing and disturbing amount.  Scott Hodge of the Tax Foundation reports on recent IRS data about the rate of tax receipts in the United States: … the share of the tax burden borne by the top 1 percent now exceeds the share paid by the bottom 95 percent of taxpayers combined. In 2007, the bottom 95 percent paid 39.4 percent of the income tax burden. This is down from the 58 percent of the total income tax burden they paid twenty years ago. The top 1 percent are now paying over 40% of total revenues, Hodge finds. When our founders established our system of government, they were intrinsically aware of the increasingly popular tendency among European theorists and governments towards radical economic redistribution. Thankfully they rejected it. In Europe, the mood was increasingly moving towards taking private wealth from some and giving to others. The founders argued their strong dislike of this European trend.  First, they believed that taking from the “haves” and giving to the “have nots” removed the necessary incentives for self improvement. Second, they believed that a government sanctioning such redistribution exhibited a complete disregard for the protection of property. Protection of property is the duty of good government. To the first point, Benjamin Franklin wrote to one of his British friends of his concern with the English laws and movement in the United States to follow them: I have long been of your opinion that your legal provision for the poor is a very great evil, operating as it does to the encouragement of idleness.  We have followed your example, and begin now to see the error, and I hope, shall freeform it.  Franklin believed that it was improper for the state to use its power to redistribute income by taking from the “haves” and giving to the “have nots.”  Doing so would be counterproductive to the goal of truly helping the less fortunate.  In Franklin’s opinion, achievement is punished under such a scheme while idleness and failure are rewarded. The second reason for rejecting radical redistribution was that the founders believed that property was as inalienable as free speech and religion. As such, it was the duty of the state to protect the liberty of property ownership as much as it was the duty of the state to protect the rights of free speech and religion.  When the state takes from the “haves” and redistributes to the “have nots,” it is not protecting the right of property. Samuel Adams described this European method of redistribution as “arbitrary, despotic, and in our government, unconstitutional.”  Thomas Jefferson also warned us about the state sanctioning the act of taking from some and giving to others: To take from one, because it is thought his own industry and that of his fathers has acquired too much, in order to spare to others, who, or whose fathers have not, exercised equal industry and skill, is to violate arbitrarily the first principle of association, the guarantee to everyone the exercise of his industry and the fruits acquired by it. So how did we get to where we are today, where 1 percent of our population pays over 40% of all federal revenues?  We seem to have arrived at the point of what Madison would describe as a majority faction. In Federalist Paper 10, Madison defines factions as: a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community. Madison’s concern and warnings about majority factions was ominous.  When a majority gains power for an extended period of time, they have the potential to wreak great havoc on the rights of others.  Madison’s conclusion about majority factions is obvious: even though a majority will may be present and fixed, that is no guarantee that the will is right.  In our current context of taxation, we have created a tax code that may indeed have majority support (it is very popular to have others pay while you enjoy the benefit), but the popular support for a radically progressive tax code does not make it right.  And clearly, such radical redistribution is counter to the intent of the Founders. Taking property from some is, as Samuel Adams suggested, arbitrary and despotic.

(Denver Post, June 21) “It is a small state, and yet there are those who love it.”  Sen. Daniel Webster, arguing the Dartmouth case before the Supreme Court, actually said “college,” not “state.”  But my paraphrase is apropos for Coloradans in a summer when the nomination of Sonia Sotomayor has everyone talking about senators and justices. We do love this smallish state of ours, and jealousy for Colorado’s prerogatives of self-government is in order as we debate replacing David Souter.  “Don’t tread on me,” the defiant flag of the founding era, has made a comeback at this year’s Tea Parties. Does Sotomayor get that?  Not that I can tell, which means she’s wrong for the court. Of the three federal branches, claimed Alexander Hamilton in the Federalist, “the judiciary will always be the least dangerous to the Constitution,” as it has neither “the sword or the purse.”  Decades of judicial imperialism have left that prediction as devalued as Hamilton’s $10 bill. More accurate was his rival Robert Yates, who wrote in the Anti-Federalist that history had never seen “a court of justice invested with such immense powers, and yet placed in a situation so little responsible.” He worried that the Supreme Court would “be able to extend the limits of the general government gradually” and at last “to melt down the states into one entire government for every purpose.” Did Yates exaggerate?  Not much. From FDR’s time to Obama’s, regardless of which party appointed them, the robed priesthood of the bench has overseen more and more of American governance gravitating from state capitals to Washington and from the elected branches to themselves. Is there blame to go around?  Yes; every part of our body politic has helped weaken liberty.  We’re now getting the government we deserve.  Does history hinge on Sotomayor’s confirmation or defeat?  No; “wise Latina woman” or not, she’s just one judge.  We the people must initiate the needed constitutional rebirth. It’s dismaying, though, how oblivious most politicians are to the high court’s part in turning free citizens into docile “sheeple” (Pravda’s mocking word).  Seeking some comprehension of the crisis, I asked Colorado’s senators, Michael Bennet and Mark Udall, what our smaller state with its commitment to participative self-government should constitutionally expect from the Supreme Court. The answers came back bland as sand. “Coloradans want judges who are fair, impartial, and faithfully apply the law,” said Bennet, adding that he hopes for a sensitivity to “our special concerns in the West” about water rights, public lands, and the role of government.  Udall told me the qualities he’s looking for include “moderation, an ability to listen and bridge ideological divides, and above all, a deep understanding of the constitution.”  Unlike Bennet, who came out for Sotomayor after a brief meeting, Udall is uncommitted though leaning favorably. The danger of senators rubber-stamping a president’s judicial nominees, predicted by Oliver Ellsworth at the 1787 convention, seems borne out by these two in relation to fellow Democrat Barack Obama.  They need remediation from CU law professor Robert Nagel, author of “Unrestrained: Judicial Excess and the Mind of the American Lawyer.”  Nagel says legal groupthink has made the whole country politically timid and “slavish in believing we need to be saved by the Supreme Court” from the messiness of democracy. Former Colorado Supreme Court Justice Jean Dubofsky, another Democrat and the first woman on that bench, supports Sotomayor but said she too wishes for a high court with more “out in the world experience” and fewer Ivy-trained Easterners with appellate resumes like this nominee. Very true, and by that yardstick I’d prefer Dubofsky herself, or Bennet or Udall, or Bill Ritter or Pat Schroeder, to Judge Sonia. Liberals all – but any of them would be less susceptible to the seductive superstition of Supremes as Saviors.        

In the fall of 2004, Wesley Busch was a kindergarten student at the Marple Newtown School District in Marple, Pennsylvania.  Each week, one of the students in his class would be the featured student in a classroom unit entitled “All About Me.”  During their assigned week, students were asked to design a poster (favorite things to do, favorite things to eat, places to go, etc.) and on the final day of the week, one of the child’s parents was asked to come to class and bring something of importance to share.  Often this would include bringing a favorite book to read for the class. Wesley Busch and his mother Donna Kay Busch decided that what Wesley would like to share would be from his favorite book, the Bible.  So on the assigned day, Mrs. Busch showed up at the school, prepared to read 5 verses from the Book of Psalms.  Before reading, she informed Wesley’s teacher of what she was planning and the teacher immediately notified the school Principal who informed Mrs. Busch that he would not allow her to read the verses, as it would be breaking the law concerning the separation of church and state and thus violate the Establishment Clause of the United States Constitution. Mrs. Busch filed suit against the school district, claiming violations of Wesley’s rights under both the U.S. and Pennsylvania Constitutions, including claims of denying her son’s rights of free speech and expression and free exercise of religious faith.  The Busch’s lost in Federal District Court and on June 1, 2009 the lower court’s ruling was upheld by the 3rd  Circuit Court of Appeals based in Philadelphia. The opinion of the 3rd Circuit Court largely relies upon the belief that had Mrs. Busch been able to read the verses from Psalms, she would in effect by “proselytizing” in the school room, thus violating the Establishment Clause, as public schools are government entities and they should not endorse faith.  Referring to the Lemon Test (developed by the Supreme Court in Lemon v. Kurtzman), a three-pronged checklist is used to determine whether or not a law violates the Establishment Clause.  For this case, the pertinent test concerns the second prong: “The principal or primary effect must neither advance nor inhibit religion.”  This test, as interpreted by the courts since the original decision in 1971, requires state neutrality towards religious faith. When we consider the “All About Me” assignment and look specifically at the question of a student bringing in a favorite book for reading, should the school be permitted to censor what is permissible?  When the school does allow Green Eggs and Ham to be read but does not allow 5 verses from Psalms, is it being neutral towards religion or is it discriminating against faith?  An important distinction must be realized: having a student or parent read from a favorite book is not the same as if a teacher or other school employee were to do so.  There is a significant difference between individuals expressing their faith in the school room as opposed to teachers in a public school setting.  We are, of course, left to wonder, what would have happened were the student to have brought in Heather Has Two Mommies or Daddy’s Roommate? Would these books have been permitted in spite of their clear agenda and attempt at persuasion?  More often than not, the courts in recent years have allowed “proselytizing” when it promotes anything but religion.  This, of course, is not neutral but in fact discrimination against religion. The verses that Mrs. Busch intended to read were Psalm 118: 1-4 & 141 Give thanks unto the Lord, for he is good; because his mercy endures forever.2 Let Israel now say, his mercy endures forever.3 Let the house of Aaron now say, that his mercy endures forever.4 Let them now that fear the Lord say, that his mercy endures forever. 14 The Lord is my strength and my song, and He has become my salvation.  

Barack Obama's selection of Sonia Sotomayor for the Supreme Court is par for the course with this president, a man who ascended the presidency on the basis of a compelling personal story and a bag full of bromides about post-partisan hope and change. Those who bought the Obama schtick may not have known it then, but they elected a hyper-partisan pol with big dreams of remaking America into a social justice utopia where the ends always justify the means.  Rules -- and indeed the rule of law -- mean little in this world where grievance politics dominate, and the playing field shifts regularly to protect those suffering all manner of "discrimination" at the hands of the (white) power structure. Its typical class warfare, only this time it is practiced with extreme efficiency and on the backs of a huge Congressional left-wing majority. For those who believe that America is a meritocracy and should be truly "color-blind", the country is now being run by those who see everything through race-colored glasses.The nomination of Sotomayor is a perfect example of this. Obama picked her not because she has the finest legal mind in the country (she does not), but because of she is an Hispanic woman who has a personal history that is appealing. She grew up poor in the Bronx and worked hard, and made something of herself. She also satisfies two check boxes on the identity politics checklist -- being a woman and a minority -- which brings Obama praise from NOW and other interest groups.Ironically, Sotomayor's story is little different than that of conservative Justice Clarence Thomas -- a point eloquently made by Kim Strassel in today's Wall Street Journal. But whereas Thomas' personal struggles led him to embrace the lesson that if "I can do it, so can others" -- Sotomayor fell firmly into victimization's clutches, where she joins a legion of other minorities in the belief that the system is arrayed against them. The irony, of course, is that the evidence of their own success from hard-scrabble beginnings has done nothing to dissuade them from their hardened belief that somehow "the man" is out to get them. This is yet another example of how facts have little bearing on the "feeling" politics practiced by the left.Sotomayor has made it clear that her view of the world -- and the law -- is based principally on her gender and background. It is something that she feels makes her better positioned to "come to a wise decision" than is a white man who hasn't been subjected to the devastating discrimination that people like Sotomayor see lurking behind every tree. If you view America as a mean place where Hispanics, women and other minorities need protection, then I suppose this is a reasonable position to take. But is this what a Justice of the United States Supreme Court should believe? Someone appointed to intepret the Constitution for all Americans -- white, black or other? A process that, by definition, must be impartial and based on legal fact and analysis?As it happens, a famous case of Sotomayor's from her tenure on the Second Circuit Court of Appeals is now being reviewed by the current Supreme Court -- as the WSJ outlines today in the case of the New Haven Fire Department. With a single paragraph, Judge Sonia Sotomayor and two colleagues dashed the hopes of firefighters here who believed they'd scored high enough on exams to win a promotion. The three federal appeals judges said last year the city had the right to reject the results of two tests because no black firefighters scored high enough. The ruling is now turning into perhaps the most contentious of the 4,000 Judge Sotomayor made in 17 years on the federal bench, and it is likely to come up in her Supreme Court confirmation hearings. The justices whom she may soon join on the high court are expected to rule within weeks on the case, which they took on an appeal by white firefighters. The facts of the case are as follows: A total of 118 applicants took the two tests for promotion to lieutenant or captain in late 2003, and 59 earned passing scores. Because there were limited vacancies, only the top scorers were eligible for promotion -- a group of 17 whites, and two Hispanics. None of the 27 black firefighters with passing scores was eligible. New Haven city lawyers advised the city's Civil Service Board to reject the results, warning the city could be exposed to a race-discrimination lawsuit by minority firefighters if it let the exam stand. The board heard conflicting views on whether the test could have been re-engineered to have a less disparate impact. It split 2-2, which meant the exam wasn't certified. This is classic liberal social engineering at work: you give a merit based test to determine promotions and tell firefighters to study hard for it. They take the test and when the results come back in a way that you don't like, you throw the results out and say "nevermind". If no blacks and only two Hispanics scored high enough, it must be because of some discrimination at work. Let's not reward those who passed -- let's reengineer the test so more blacks and Hispanics will pass. Sotomayor was at the heart of this decision -- stating that it was in the "state's interest" to throw out the results so that the outcome was more to her liking. And what about the white firefighters who have now been discriminated against? To Sotomayor, it doesn't matter, because she lives in a world where color matters more than principle. This is a woman who values outcomes over equality -- even if it results in a decision that is reverse discrimination. We can take some solace that her decision in New Haven is almost certainly going to be reversed by the current Supreme Court. But it leaves little comfort that we are now poised to put this very same judge on the highest court in the land for a generation to come.

President Obama says he seeks "empathy" in a Supreme Court justice.  His first nominee, Judge Sonia Sotomayor, says a "wise Latina woman" would generally make better decisions because of "the richness of her experiences" than a white man. Those views reveal the extent to which political and personal agendas have supplanted the rule of law in selecting nominees. If "rule of law" sounds cold and callous, remember that the alternative isn't "rule of empathy" but "rule of men" ‹ the hierarchy most prevalent throughout human history. Rule of law requires that laws be written, accessible, understandable and uniformly applied. Hence, Lady Justice is depicted as blindfolded, unable tosee the identity of those before her, and holding scales on which she weighs the merits of the opposing sides. Where rule of man predominates, the law means whatever king or dictator or court wants it to mean on a given day.  Historically, this form of corruption favored those with money or power, even when their case was unjust.  Those who undermine the law today do so to reward political constituencies, like racial, gender or other interest groups. "(Chief Justice John) Roberts said he saw himself just as an umpire," Obama said in 2007. "But the issues that come before the court are not sport. "We need somebody who's got the heart ‹ the empathy to recognize what it's like to be a young, teenage mom; the empathy to understand what it's like to be poor or African-American or gay or disabled or old." Surely this President to whom profound intellect is routinely attributed understands that the view of a judge as umpire has nothing to do with sports (although he seems strangely enamored of Sotomayor's ruling in a baseball labor dispute). In comparing the role of a judge to that of an umpire, Justice Roberts understood that, just as an umpire's job isn't to determine the outcome by bending the rules, a judge's duty isn't to pick winners and losers by selectively applying the law to some but not to others. Legendary Justice Oliver Wendell Holmes understood this, too, and famously explained that his primary responsibility as a judge was "to see that the game is played according to the rules, whether I like them or not." While Obama purports to seek judges who will empathize with the downtrodden, he seems unwilling to consider that sometimes the downtrodden break the law.What then?  Similarly, a corporation or business owner with deep pockets should be afforded the same legal protections as a bartender or schoolteacher. Though American justice has its flaws, the standard inscribed on the Supreme Court building - "Equal Justice Under Law" - was once our common goal. Obama, however, wants the courts to selectively tip the scales:  "I view that quality of empathy as an essential ingredient for arriving at just decisions and outcomes." In the very next sentence, he seamlessly performs a remarkable contradiction, claiming he will "seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process." When it comes to Jedi mind tricks, Yoda has nothing on Obama. Sotomayor doesn't even pretend that impartiality is a worthy goal.  Citing "basic differences in logic and reasoning," she argues that "our experiences as women and people of color" make "the aspiration to impartiality is just that - it's an aspiration[.]" If a jurist nominated by a Republican president suggested that women and minorities are incapable of impartiality, that nominee would be excoriated - and properly so. Clarence Thomas, Janice Rogers Brown and Miguel Estrada, among others, demonstrate that judges of all backgrounds can choose to apply the law impartially, while others choose to favor particular groups and distort the law accordingly. President Obama understands that his nominee has little interest in presiding like an umpire or in impartially applying the law.  He also understands that this undermines the rule of law.  He just doesn't want you to understand. Mark Hillman served as senate majority leader and state treasurer.  He is now Republican National Committeeman for Colorado, and a Centennial Instsitute Fellow.  To read more or comment, go to www.MarkHillman.com  

With President Obama’s nomination of Judge Sonia Sotomayor to fill the seat of retiring Justice David Souter, we will again have the opportunity during the confirmation process to consider the proper role of the judicial branch under our constitutional system.  This debate usually centers between the two leading interpretations of judicial review: Judicial Activism and Originalism.  Already many proponents of an activist judiciary are complementing the nomination as they support a judiciary that is actively making public policy.  Most activists support the judiciary making public policy when they have been unable to make it through the appropriate legislative branches at the state or national level.While participating on a discussion panel at Duke Law School in 2005, Judge Sotomayor  sarcastically responded to a question about the courts in the following way: “Court of Appeals is where policy is made.”  Despite her half-hearted disclaimer, mocking any critique of judicial activism, it is clear that Judge Sotomayor has no problem when the courts make public policy. Defenders of judicial activism argue that there is not a clear prohibition against it and that the Constitution seems rather vague concerning the power of judicial.  While Article III may not be as explicit as supporters of judicial activism might require in order to curtail their adventures in “legislating from the bench”; they are of course ignoring the most obvious limitation of judicial law-making: Article I, Section 1 of the Constitution:   All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. Our Founders could not have been more explicit: All legislative Powers!  Policy making is law making.  That power resides exclusively with the Legislative Branch in spite of what Judge Sotomayor may prefer.  There is no ambiguity, only dishonest and intentional ignorance of the text to suggest otherwise.  There is no other explanation for the argument supporting judicial activism. One final point: the oath that judges take upon being seated on the bench: “I, (name), do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as (title) under the Constitution and laws of the United States. So help me God.” There isn’t any room for activism, nor “empathy” for favored groups here in this oath.  Only impartial, detached, and consistent application of the laws.