Constitutional growth delay

Gore can't help making things up, the same way Clinton can't help dropping his pants. He's an incorrigible liar. The persistent habit of making things up is normally considered a pathology. But among Democrats it's known as having a "judicial temperament." Democrats actually look for judges who are willing to make stuff up. Or as Gore described it, he will appoint judicial nominees who view the Constitution as a "document that grows."

Having already "grown" a nonexistent right to abortion, there's no telling what other rights Gore's appointees might discover growing in the Constitution, just as Gore grew that FEMA trip to Texas.

The Supreme Court and the many lower federal courts will soon come to resemble the New Jersey Supreme Court or the California Supreme Court when Rose Bird was in charge.

Piecing together the rulings of some of these courts, various popular liberal judges, as well as the editorial page of the New York Times, it's not difficult to conjure up what this country will look like after a few years ol Gore judicial appointees.

Pretty much every crackpot idea you've ever heard of will be "constitutional law" from the medical use of dope, comparable worth for women, the rights of smelly homeless person to harass library patrons, and the right to prohibit acts of prayer. Turn out the lights.

By contrast, the most conservatives can hope for if Bush wins this election is the possibility of being able to prevail in the future, not actually prevailing. Judges who do not believe in a Constitution that "grows," do not issue far-reaching proclamations of conservative victory. They just rule on what the Constitution says. And most of the time what it says is that it's none of the Supreme Court's business. For conservatives, this is Dunkirk, not D-Day.

Even if Bush wins and appoints true judges who years and years from now finally overrule Roe v. Wade, all that happens is that abortion can then be fought out in 50 state legislatures, and possibly Congress, with a mixed possibility of winning anything.

And that's going to take awhile. Though Justice Anthony Kennedy is frequently touted as an abortion foe, he voted to uphold the "core" of Roe (which "grew" out of nowhere and then that abomination "grew" again into a new right to stick forks in babies' heads). Kennedy's only quibble is with infant ticide qua infanticide.

If Gore wins, not only will his judges ratify the status quo for the next 30 years, but soon the Constitution will be "growing" rights to kill all sorts of powerless people liberals don't like.

Scores of peripheral abortion rulings will likely be overruled by a Gore Growth Court, including the puny victories in Casey v. Planned Parenthood.

That case continued to pretend there is a constitutional right to abortion (that had suddenly sprouted in the penumbras about 200 years after the Constitution's birth). But the Casey court did uphold a few piddling state requirements related to this great constitutional right. The court permitted parental notification and consent requirements in Casey. That will be overruled by the Gore court. Christy Todd Whitman's New Jersey Supreme Court has shown us the way, holding that New Jersey's equal protection clause forbids parental notification or consent requirements-unless all other medical or health procedures require parental notification, too (Planned Parenthood v. Farmer, NJ. 2000).

Casey permitted states to require that women seeking abortions be told about the risks of abortion, the gestational age and development of the fetus, and other information. That will be overruled.

In Harris v. McRae the Supreme Court upheld the Hyde Amendment, which eliminated federal funding for most abortions provided through Medicaid.

This too, will likely be overruled. In Planned Parenthood v. Myers (Cal. 1979) the California Supreme Court held that the state constitution "requires" government funding for abortion, and the state courts of about two dozen other states have held the same.

Though these courts have generally held that the states are required to fund only "medically necessary" abortions, that includes abortions where the mother's health (but not life) is in danger. "Health" can cover emotional health, etc., and, of course, childbirth always carries some risks. So in practice these rulings sustain a blanket right to an abortion for the indigent.

RU-486, the "human pesticide," as Pat Buchanan calls it, will be more prevalent in public schools than-well, I'd say the Bible, but that's not saying much. Unicorns are more prevalent than Bibles, as it is.

The 1st Amendment will be commonly referred to as the "Flynt Amendment," since soon all it will protect is Larry Flynt and his pornography colleagues.

But it will not be held to prevent Congress and state legislatures from banning all sorts of real speech.

There will likely be a major change in the Buckley v. Valeo regime for campaign financing, so as to permit "egalitarian" regulation of political campaigns. Liberals will finally have their wish-no one will be allowed to spend money on political speech on behalf of candidates, except "the public"-that is, bureaucRATS. With government bureaucracies deciding who qualifies for "public" financing, soon all candidates for office will resemble Teddy Kennedy.

Though we won't have a right to engage in political speech, we will gain a right to stink up public libraries as part of our precious 1st Amendment rights.

That was the ruling of federal Judge H. Lee Sarokin-a favorite judicial appointee among Democrats. Sarokin was first appointed to a Federal District Court in 1979 by President Jimmy Carter (on then-Sen. Bill Bradley's recommendation). In his second year in office, President Clinton elevated Sarokin to the 3rd Circuit Court of Appeals.

Recognizing that the Constitution is a document that can "grow," Judge Sarokin discovered that in 1991 the Constitution had sprouted a 1 st Amendment right to emit a foul body odor in public libraries and prohibited a public library from evicting a smelly homeless man. You couldn't make this stuff up. (If you can, you stand a good chance of being nominated to the Supreme Court by Al Gore.)

Our right to free speech, according to Judge Sarokin, protested the bum's right to harass the library staff, stalk female patrons, talk loudly to himself, stare at people, smell the place up, and generally frighten library patrons away. As the learned liberal judge explained, "If we wish to shield our eyes and ears from the homeless, we should revoke their condition, not their library cards."

(Except the town had tried to revoke this particular homeless man's "condition." Various community groups had tried to prod him into drug and alcohol recovery programs and had even found him a job. Sarokin rejected both the job and the programs on the grounds that the religious element of the community groups "turns homeless people off.")

So we'll have a lot of pornography and stinky, menacing homeless people-all part of our precious freedoms under a constitution that "grows."

The "separation of church and state" clause of the Ist Amendment-which does not actually exist anyplace in the Constitution, but apparently "grew" into it some years agowill be wielded to finally complete the project of stamping out religion from the schools, from the public square, and from the churches.

In addition to the constitutional right to never ever have to catch a glimpse of someone practicing his religion, the Ist Amendment will be interpreted to protect the right of prisoners to take drugs and be served filet mignon-at least for those prisoners who purport to be a members of the Church of Crack Cocaine or the Synagogue of the Filet Mignon.

It won't be too pricey for the taxpayers to provide prisoners with their crack and filet mignon though, because almost no one will be in prison. The criminal defense lawyers will finally have their way and eyewitness testimony will be excluded as unreliable, while circumstantial evidence-the only other kind of evidence there is-will be excluded as merely circumstantial.

The only evidence that will be deemed sufficiently reliable will be exculpatory evidence.

DNA tests will be used exclusively to delay executions, which will soon be "unconstitutional" across the board, anyway. Though the Constitution makes explicit reference to the death penalty in four separate places, the Constitution will "grow" causing those clauses to disappear (as they did for a short period during the last Imperial Judiciary).

The Court will discover that criminals have a right not just to an attorney, but to the "Dream Team" as defense counsel. If Johnnie Cochran is not available, suspects must be set free. Also criminals will have a right to a psychotherapist.

The sole remaining crime that will be vigorously enforced-and in which eyewitness testimony will be admissible-will be engaging in free speech. Michigan state courts have broken ground in this burgeoning field, having recently criminally prosecuted a woman for engaging in speech in a public place.

Overhearing some patrons speaking Spanish in a restaurant in Manistee, Mich., Janice Barton remarked in a private conversation with her mother and daughter, "I wish these damn 'spics' would learn to speak English." (As liberals invariably say about those smut magazines protected by the Flynt amendment-I abhor what she said,,but she has a right to say it.)

Not anymore. Barton was charged and convicted of committing the misdemeanor, "insulting conduct in a public place."

A Michigan District Court Judge, Brent Danielson, upheld the verdict, and sentenced her to 45 days jail, two years probation, and a $500 fine. He explained the criminal conviction for free speech thus, "You don't say words like this when someone is present ... unless you are either intending to hurt them or injure them." (But see, Cohen v. California, 403 U.S. 15, 18 [1971] in which the Supreme Court held a "F*** the Draft" T-shirt protected speech under the Constitution.)

Former Michigan Civil Rights Commission Director John Roy Castillo hailed the Danielson decision, noting that Barton's comment was offensive and could have sparked a fight. "I'm non-violent, but I might have confronted her and who knows the personality of that person"

So we have a 1st Amendment that protects only speech unlikely to precede a confrontation when we don't know the "personality" of the speaker.

And nude dancing. Last March, the Supreme Court did hold that states may require strippers to wear "pasties" and G-strings without running afoul of the 1 st Amendment-but that was a 6-to-3 decision. Two Gore appointees and the right to dance naked in a bar will be part of the beautiful mosaic of our free speech rights. You still won't have a right to engage in actual speech in a restaurant-at least not if anyone threatens to fight you over the content of your speechbut at least the intolerable oppression of pasties will be lifted.

In addition to not engaging in speech about racial minorities, you will not be allowed not to hire them, until you have achieved a perfect racial quota.

The 14th Amendment will "grow" from a decree against the government's engaging in racial discrimination to an iron-clad requirement that the government engage in discrimination.

The Supreme Court's rather recent and very narrow rejection of race discrimination by the government has never really caught on in the lower courts. One little nudge from a reconfigured Gore Court and the entire country will be back in the discrimination business. In Adarand Constructors v. Pena (1995) the court held in a 5-to-4 decision that federal affirmative action programs have to satisfy a compelling government interest and be narrowly tailored.

Recently, three Democrat appointees on the 10th Circuit Court of Appeals (two Clinton, one Carter) have yet again defied the Supreme Court by holding that the federal affirmative action program challenged in Adarand is constitutional, after all. These guys aren't even waiting for Justices William Rehnquist and Sandra Day O'Connor to retire.

Federalism will of course be dead under a court composed of Justices who believe the Constitution "grows." The Constitution divides powers among the branches and between the federal government and the states, and it reserves certain basic rights for the people. Since federalism has been winning by only one vote on the court lately, even those small victories will be reversed under a Gore presidency. (Actually reading the Constitution will be "so" 20th Century.)

Consequently, there will no longer be any limits to the laws the United States Congress can enact. Speech restrictions, religion restrictions, gun confiscation-the Congress will be permitted to do all this and more. But even Congress will not be permitted to infringe on the right of go-go dancers to refuse pasties.

Copyright Human Events Publishing, Inc. Oct 13, 2000
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