The Right's Making Up Rights

This is Tony Perkins, President of the Family Research Council, on Monday:

When President Bush was re-elected last fall, no promise he made to the 62 million Americans who voted for him was more central to his campaign than his call for judges who respect the original intent of the framers of our Constitution, who will interpret the law, and not seek to legislate from the bench. There is every indication the President has kept those promises in his selection of Judge Samuel A. Alito, Jr., to serve on the U.S. Supreme Court.

And this is Tony Perkins on Thursday, criticizing a US Court of Appeals decision allowing a local school board to survey elementary school students about sex:

It is hard to imagine that any of those sitting judges who issued this infamous ruling ever had a seven-year-old child. This outrageous and offensive result must be overturned. It is one more horrible example of what happens to parents' rights when liberal judicial activists are unchecked. Whatever happened to the child's right to be a child?

Now, where exactly does Perkins think a "child's right to be a child" is to be found in the Constitution? And upon which article does he base his claim that "outrageous and offensive" results should be deemed unconstitutional? And why is Perkins suggesting that judges should have "legislated from the bench" and overruled the actions of a democratically elected body?

Tony Perkins manages to encapsulate the logical incoherence of the social conservative movement's approach to judicial issues. It claims to be against judicial activism, and points to some version of originalism or strict constructionism as validating that position. What's not explained, though, is how the latter has anything to do with the former. Indeed, looking at the record, it is the conservatives on the Supreme Court who are most willing to overturn federal statutes. In particular, Scalia's vaunted originalism is no safeguard against activism here. And there is also good reason to believe that the kind of close reading of the Constitution long associated with conservatives can in fact lead to some very liberal outcomes.

But this isn't just about logic, it's about winning. And conservatives have gotten very good at winning these arguments — so good, in fact, that they are able to frame most issues in the way that best serves their agenda. So when conservative judges overturn acts of our democratically elected Congress, they are said to be simply following the founders' intent. And when a liberal judge lets stand a local school board policy, that's judicial activism. The phrases used lose any consistency of meaning, but that's part of what winning means — it's being able to define the terms of the debate however you want without anyone really noticing.

It would be interesting if we could actually have a real debate about Alito based on the criteria that both sides tacitly acknowledge — it's about outcomes, not process. Do we want to live in our America, or do we want to live in theirs? But we're not going to get that debate, only another series of ponderous and deeply dishonest lectures from the right about the vitues of the founders and the need to avoid judges who will legislate from the bench. How depressing.