WSJ editorial page deputy editor Daniel Henninger explains how we got into our current judicial mess – what the founder of Common Good calls legislative and legal “incoherence.”
It seems we hit a point about 70 years ago where some (elitist) folks figured that the scale of problems such as urban poverty had become so great that they had to be handled on a national basis. Moral teachings and enforcements that had been managed since the beginning of time on a community level then began to be managed by government agencies. Of course, that meant that federal courts, particularly the Supreme Court, had to become the ultimate arbiters of morality.
Initially the court’s moral rulings had little impact on the lives of individuals, but after more than half a century their combined weight has made “individuals largely irrelevant to a modernist rule of law, which purports larger moral goals through the administrative process.” People have taken notice, and now “there is a politically potent constituency, which believes that this 70-year-old legal-administrative state is smothering them–as individuals, as communities and as a society.”
That is why conservatives feel strongly about the President nominating a constructionist to the court. That is why the battle in the “coming advise, consent and demolition hearings” will be important and will be worth winning.