Principalities & Powersrnby Samuel FrancisrnImpeachable OffensesrnBack in March, Republican MajorityrnWhip Tom DcLay took lunch at thernWashington Times and started jabberingrnabout how he and his party were going tornimpeach “activist judges” who handedrndown improper rulings. I know somethingrnabout how those luncheons at thernTimes work, so I was not as impressed asrnsome people. First, the guest is taken tornthe editor-in-chief’s office and offered arndrink or two. Then at table he is keptrntalking and prevented from swallowingrnany solid food, all the while being pliedrnwith more potables and lots of questionsrnfrom the reporters present. By the end ofrnthe session, the guest—usually an officeholderrnand often a congressman or Cabinetrnmember—is lucky if he hasn’trnthreatened to nuke Massachusetts andrndefund Arlington Cemetery, but thernhapless celebrity finds himself and his remarksrnplastered all over the front page ofrnthe next day’s edition, while his pressrnaides scurry to explain what he really saidrnand what he really meant.rnhi Mr. DeLay’s case, there was no reasonrnto retract or explain, and indeed hisrnfellow congresspersons in the Stupid Partyrnfound his proposals exhilarating. Arnday or so later, the news was full of storiesrnabout how the Republicans were goingrnto take back the Constitution and decoraternthe public lamp posts with therncorpses of judges. “They loved it,”rnspouted the Majority Whip of his colleagues’rnresponse to his proposals, “theyrnthink I’m a god on this one.” The Texasrnlawmaker then boasted of how he wasrneven drawing up plans for the massrnbloodletting to be submitted to therngrand inquisitor himself, Speaker Cingrich.rnIt is always dangerous when Republicansrnstart thinking about the Constitution.rnIf history tells us anything, it showsrnthat from the blatantly illegal passage ofrnthe 14th Amendment in 1866 down tornDwight Eisenhower’s appointment ofrnEad Warren and William Brennan to thernSupreme Court, the Republican Partyrnhas been the major enemy of constitutionalrngovernment. There have indeedrnbeen Republicans who knew somethingrnabout constitutional law—SenatorrnRobert Taft, for example, as well as BarryrnGoldwater and my late employer JohnrnEast—but for the most part, congressionalrnpressures for preserving the integrityrnof the Constitution have sproutedrnin Democratic bosoms—notably Southernersrnlike Richard Russell of Georgia,rnI Iarr- Byrd of West Virginia, Sam Ervinrnof North Carolina, and James Allenrnof Alabama, to name but a few. Evenrnthe inmiense damage inflicted on thernConstitution by the judges and justicesrnappointed by Woodrow Wilson andrnFranklin Roosevelt could have been correctedrnhad it not been for the insistencernof the Republicans who perpetuatedrntheir follies bv their own appointmentsrnto the bench.rnThe Reagan and Bush eras proved thisrnrule. By the time President Bush left officernin 1993, all but two of the nine justicesrnof the Supreme Court had been appointedrnby Republican Presidents, andrnone would have thought that the collecti^’rne judicial appointments to the federalrnbench by Nixon, Ford, Reagan, and Bushrnmight have made some difference in thernkind of court decisions the Solomonsrnhand down. But the truth is, it made norndifference at all. The most controversial,rndivisive, and damaging court decisions inrnAmerican history—those of the Warrenrnand Burger courts—were the products ofrnmainly Republican appointments, andrnwithout their contributions to jurisprudence,rnthe rest of the country would notrnhave had to endure the effects of forcedrnschool desegregation, the legalization ofrnpornography, the destruction of criminalrnlaw, and the creation of abortion as arn”human right.”rnRecent Republican ventures intornconstitutionalism continue this pattern.rnEver since the Republicans won a congressionalrnmajority in 1994, they havernunveiled one ill-considered constitutionalrnamendment after another—thernSchool Prayer Amendment, the FlagrnAmendment, the Term Limits Amendment,rnthe Human Life Amendment, thernReligious Freedom Amendment, andrnthe Balanced Budget Amendment. Almostrnall of these measures are carelesslyrndrafted, intended more to assuage thernpet peeves of their conservative constituenciesrnthan to provide clear guidancernas to what lawmakers may or mayrnnot do, and none of them speaks to thernfundamental flaws that the courts havernimported into the Constitution over thernlast half century and more. For all thernballyhoo about the Tenth Amendmentrnand states’ rights that Republican gurusrnhave spewed forth in recent years, not arnsingle serious effort has been made to restorernreal federalism. Not a single seriousrneffort has been made to curb the “imperialrnpresidency” that Taft and Coldwaterrnwarned about in the 1950’s or that conservativerntheorists like James Burnham,rnWillmoore Kendall, and Russell Kirkrncriticized long before Richard Nixon’srnexperiments in presidential Caesarismrnexcited the envy of Arthur Schlesinger,rnJr. Not a single serious effort has beenrnmade to reverse the principal Big Lie ofrn20th-century jurisprudence, the IncorporationrnDoctrine, under which therncourts may strike down virtually any staternor local law that displeases them, if therernis a single Republican congressman todayrnwho understands these principlesrnand even entertains the notion of restoringrnthem, I am unable to tell who hernmight be, nor do the “theorists” who discoursernon constitutionalism in today’srnconservative circles show much grasp ofrnthem either.rnThe main such theorist, of course, isrnRobert Bork, who does know a bit aboutrnthe Constitution and who would like torndo something to salvage it. But evenrnJudge Bork flops and flails when it comesrnto doing the right thing. In his book ThernTempting of America, written after therndefeat of his nomination to the SupremernCourt by President Reagan, he dismissesrnany notion of reversing the IncorporationrnDoctrine. “The controversy over the legitimacyrnof incorporation continues tornthis day,” he writes, “although as a matterrnof judicial practice the issue isrnsettled.” In his more recent book, hernis equally dismissive of the SecondrnAmendment. “The Supreme Court hasrnconsistently ruled that there is no individualrnright to own a firearm,” he writesrnerroneously. “The Second Amendmentrnwas designed to allow states to defendrnthemselves against a possibly tyrannicalrnnational government. Now that the federalrngovernment has stealth bombersrnand nuclear weapons, it is hard to imaginernwhat people would need to keep inrn34/CHRONICLESrnrnrn