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May 06 2011

Hatch Honors President Reagan's Judicial Legacy, Commitment to Constitution in Speech This Morning

Former Judiciary Committee Chairman Outlines Need to Stop Activist Courts, Reasons Why Health Law is Unconstitutional

WASHINGTON – This morning, U.S. Senator Orrin Hatch (R-Utah), a member and former Chairman of the Senate Judiciary Committee, delivered a speech before the Republican National Lawyers Association, outlining the importance of President Reagan’s judicial legacy and his commitment to core constitutional principles.  He also examined the need for a restrained judiciary with judges who do not insert their views for the law, and why the health law is unconstitutional.  Below are excerpts of Hatch’s speech:

ON JUDICIAL ACTIVISM:

Since the 1930s, however, judges have increasingly claimed the power to control the Constitution by controlling and changing its meaning.  Whether it is finding unwritten rights in our written Constitution, or fundamentally changing the meaning of what is actually written there, judges have taken control of the Constitution that is supposed to control them.  This is the heart of judicial activism.  It does not take a legal education to understand that the Constitution cannot control judges if judges control the Constitution, or that our liberty is lost if the Constitution no longer limits government. 

President Reagan sought to reassert that the Constitution embodies inescapable and enduring mandates established by the people, and to appoint judges who believed the same.   His predecessor, Jimmy Carter, is the only full-term President in American history not to appoint a Supreme Court Justice, which perhaps is proof that there is indeed a God who is looking out for us after all.  After spending four years on the Judiciary Committee examining President Carter’s lower court nominees, I spoke loudly in the 1980 campaign against what I called avant garde liberal activists who will legislate from the bench.  President Reagan was elected promising to appoint a very different kind of judge.

The fight over judicial appointments today remains the fight over judicial power.  President Obama clearly takes the side opposite that of President Reagan.  In 2005, then-Senator Barack Obama opposed the nomination of Chief Justice John Roberts and argued that judges decide cases based on their deepest values and core concerns, their perspective on how the world works, the breadth and depth of their empathy, and what is in their heart.  Sounds an awful lot like moral reflections and personal impressions, don’t you think?  Two years later, when running for president, he told the Planned Parenthood Action Fund that these are the criteria he would use to appoint judges.

 

ON WHY OBAMACARE IS UNCONSTITUTIONAL:

 

The second fight for which the Reagan legacy has equipped us is the fight over the constitutionality of Obamacare.  More precisely, we are fighting over whether the Constitution allows Congress to require that you purchase a particular good or service such as health insurance.  I was the first Senator to challenge the constitutionality of the so-called individual insurance mandate when the Finance Committee considered Obamacare in the fall of 2009.  I am proud to say that Utah is an original plaintiff in the lawsuit challenging Obamacare that is now before the 11th Circuit. 

Here’s what is at stake.  The Constitution allows Congress to regulate interstate commerce.  The Supreme Court expanded that to include activities that substantially affect interstate commerce.  Now the Obama administration wants to expand it to include decisions about activities that substantially affect interstate commerce.  Do you see where this is going?  When U.S. District Judge Gladys Kessler upheld the insurance mandate earlier this year, she said that decisions are merely “mental activities” and that the difference between mental and physical activities is nothing but semantics.  That is how activist judges treat constitutional interpretation – as a word game.  If the Constitution allows Congress to control your mind, however, Congress can control everything and the fight for liberty is over. 

Below are Hatch’s full remarks:

Thank you, Kristi, for that kind introduction.  It is always good to be with friends and always good to celebrate important events.  Today, I get to do both.  We naturally focus on what is happening at the moment and often forget even to acknowledge what has happened in the past, let alone appreciate how it has shaped the present.  This is true as we celebrate President Ronald Reagan's 100th birthday and look at his legacy of leadership.  Much that is happening today, both in America and around the world, is shaped profoundly by that legacy.  This morning, I would like to reflect on how that legacy equips conservatives to fight for liberty today.

Before I do that, however, I want to pay tribute to someone with a legacy of her own, my friend and a co-founder and co-chairman of this organization, Betty Murphy, who passed away last October.  Betty was truly a groundbreaker.  She was the first female administrator of the Wage and Hour Division at the Department of Labor.  When I was first elected to the Senate, Betty was chairing the National Labor Relations Board, the first woman appointed to that body.  And in 2006, she became the first and only lawyer elected to the National Academy of Human Resources.  During the Reagan administration, Betty was offered an appointment to the U.S. Court of Appeals and I urged her to take it.  But she thought that life on the bench would be too sedentary and she liked to solve problems and be in the thick of things.  That was typical of Betty, who thought more about doing the most good than about celebrity or fame for herself.  President Reagan did, however, appoint Betty to the Commission on the Bicentennial of the U.S. Constitution, where she chaired the International Advisory Committee.  The District of Columbia Bar, to which she was so committed, appropriately named Betty a Legend in the Law.  Betty Murphy was a great lady, a dedicated public servant, and a dear friend who has left a legacy of her own.

One measure of a president’s legacy is how the American people view him over time.  An ABC poll in February 2000 ranked Reagan the fifth greatest president, a Washington College poll five years later ranked him second, and a Gallup poll three months ago found that more Americans rank Reagan the greatest president than any other.  I’d say that is moving in the right direction. 

One of the reasons for an increasing appreciation of President Reagan is the kind of legacy he left behind.  He was not a flavor-of-the-day president trying to invent something new, usher in a newfangled paradigm, or appeal to the latest emotional fad.  President Reagan instead sought to revive and recapture principles and values that had not died, but had seemed to go into hibernation.  Ed Meese knows more about the Regan legacy than anyone; after all, he was there in the middle of it all.  Ed wrote in a 2004 article that Reagan’s legacy in the law is a “revival of principled constitutionalism.” 

That is a tall order, for we live in an age of fleeting things, and the attention span of many Americans is about as long as a tweet.  Fifty percent more young people can name the Three Stooges than the first three words of the Constitution, and 21 percent of Americans believe that the First Amendment protects the right to own a pet.  Perhaps most disturbing of all is that 20 percent of our fellow citizens believe that only lawyers can understand the Constitution.   Given the way that constitutional law is commonly taught today, I wonder whether lawyers might be least able to understand the Constitution.

But I still believe that, in the long run, the American people respond to principles and policies that are grounded and rooted in something firm, something lasting, something that stands the test of time.  That is why President Reagan was so popular when he was elected and why his legacy is so powerful today.  Let me give two examples. 

The fight over judicial appointments has always been, and remains today, a fight over judicial power.  America’s founders believed that liberty requires limits on government and, as the Supreme Court said in Marbury v. Madison, gave us a written Constitution so that those limits would not be mistaken or forgotten.  To America’s founders, the Constitution is the ultimate expression of the will of the American people.  As President George Washington put it in his farewell address, the very basis of our system of government is that the people retain authority over the Constitution. 

Authority over the Constitution must include not only authority to determine what the Constitution says, but authority to determine what the Constitution means.  The Constitution, after all, is really the meaning of its words.  The only legitimate approach to interpreting the Constitution is to determine the meaning that its words already have, the meaning given to the words by the people to whom the Constitution belongs. 

Since the 1930s, however, judges have increasingly claimed the power to control the Constitution by controlling and changing its meaning.  Whether it is finding unwritten rights in our written Constitution, or fundamentally changing the meaning of what is actually written there, judges have taken control of the Constitution that is supposed to control them.  This is the heart of judicial activism.  It does not take a legal education to understand that the Constitution cannot control judges if judges control the Constitution, or that our liberty is lost if the Constitution no longer limits government. 

A lawyer died and went to heaven on a particularly busy day.  While waiting in line, he saw a man in a black robe walk to the front, say something to St. Peter, and walk right in.  When he got to the Pearly Gate, the lawyer asked why the judge had received special treatment.  St. Peter chuckled and said: oh, that was actually God, he just likes to think he’s a federal judge once in a while.

            One of my predecessors as Senator from Utah, George Sutherland, served on the Supreme Court for 15 years.  When he dissented in West Coast Hotel v. Parrish in 1937, Justice Sutherland wrote that the judicial function of interpretation does not include the power of amendment under the guise of interpretation.  Failing to make this distinction, he wrote, converts “what was intended as inescapable and enduring mandates into mere moral reflections.”  Justice Robert Jackson would later lament the belief that the Supreme Court “no longer respects impersonal rules of law but is guided…by personal impressions which from time to time may be shared by a majority of Justices.”  That belief, Justice Jackson wrote in 1953, had become widely held.  A century earlier, however, Justice Benjamin Curtis gave fair warning in his dissent in Dred Scott v. Sandford.  He wrote: And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.

Make no mistake, such things as moral reflections, personal impressions, or theoretical opinions are not enough to protect our liberty.  Judges who take an oath to support and defend the Constitution, but who believe that they determine its meaning, are really swearing to support and defend themselves.  Judges, and not the Constitution, become the supreme law of the land if they control what the Constitution really is.

President Reagan sought to reassert that the Constitution embodies inescapable and enduring mandates established by the people, and to appoint judges who believed the same.   His predecessor, Jimmy Carter, is the only full-term President in American history not to appoint a Supreme Court Justice, which perhaps is proof that there is indeed a God who is looking out for us after all.  After spending four years on the Judiciary Committee examining President Carter’s lower court nominees, I spoke loudly in the 1980 campaign against what I called avant garde liberal activists who will legislate from the bench.  President Reagan was elected promising to appoint a very different kind of judge.

            The fight over judicial appointments today remains the fight over judicial power.  President Obama clearly takes the side opposite that of President Reagan.  In 2005, then-Senator Barack Obama opposed the nomination of Chief Justice John Roberts and argued that judges decide cases based on their deepest values and core concerns, their perspective on how the world works, the breadth and depth of their empathy, and what is in their heart.  Sounds an awful lot like moral reflections and personal impressions, don’t you think?  Two years later, when running for president, he told the Planned Parenthood Action Fund that these are the criteria he would use to appoint judges.

I’m here to tell you that this is one campaign promise that President Obama has rigorously kept.  He has, for example, nominated Berkeley law professor Goodwin Liu to the U.S. Court of Appeals for the Ninth Circuit.  Professor Liu has written and spoken directly about how judges should go about judging.  He says that the Constitution can absorb new meanings discovered by judges in such places as the concerns, conditions, and evolving norms of society; social movements, practices, and circumstances; as well as evolving norms and cultural understandings.   All of this and more, he says, is fair game in what he calls the “ongoing search for constitutional meaning.”

Try this one on for size.  Writing in the Stanford Law Review in 2005, Professor Liu offered this description of the role of judges: “The problem for courts is to determine, at the moment of decision, whether our collective values on a given issue have converged to a degree that they can be persuasively crystallized and credibly absorbed into legal doctrine.”  That is vintage Professor Liu.

On the one hand, it’s anyone’s guess what all this could possibly mean.  Collective value convergence, persuasive crystallization, and credible doctrinal absorption – try saying that three times at any speed.  But on the other, it only matters what judges thinks this means.  In the judiciary stocked by President Obama with judges such as Professor Liu, judges decide which values are sufficiently collective to matter and the degree to which they have converged.  Judges decide how they should be absorbed, whether it’s credible or persuasive, and what legal doctrine should look like.  Judges do all that.  Not a bad gig if you can get it.

I agree that constitutional interpretation is about searching for constitutional meaning but there are only two choices.  Judges must either look inside the Constitution for the meaning that the people already put there, or judges will look anywhere else for the meaning that they want to put there instead.  Either the people determine what the Constitution means, or judges do.  The first course keeps intact the people’s authority over the Constitution, the second steals that authority from them.  President Reagan had it right, President Obama has it dead wrong.

We’ve come a long way from when Alexander Hamilton wrote that the judiciary would be the weakest and least dangerous branch.  We’ve come a long way from when the Supreme Court held in 1795 that the Constitution “is fixed and certain…and can be revoked or altered only by the authority that made it.”  We’ve come a long way from when the U.S. Senate Judiciary Committee issued a report affirming that giving the Constitution “a meaning different from the sense in which it was understood and employed by the people when they adopted the Constitution, would be unconstitutional as a departure from the plain and express language of the Constitution.”  Even though activist judges are looking for meaning in all the wrong places, thanks to President Reagan’s legacy we have tools to engage in this fight over judicial power.

The second fight for which the Reagan legacy has equipped us is the fight over the constitutionality of Obamacare.  More precisely, we are fighting over whether the Constitution allows Congress to require that you purchase a particular good or service such as health insurance.  I was the first Senator to challenge the constitutionality of the so-called individual insurance mandate when the Finance Committee considered Obamacare in the fall of 2009.  I am proud to say that Utah is an original plaintiff in the lawsuit challenging Obamacare that is now before the 11th Circuit. 

Here’s what is at stake.  The Constitution allows Congress to regulate interstate commerce.  The Supreme Court expanded that to include activities that substantially affect interstate commerce.  Now the Obama administration wants to expand it to include decisions about activities that substantially affect interstate commerce.  Do you see where this is going?  When U.S. District Judge Gladys Kessler upheld the insurance mandate earlier this year, she said that decisions are merely “mental activities” and that the difference between mental and physical activities is nothing but semantics.  That is how activist judges treat constitutional interpretation – as a word game.  If the Constitution allows Congress to control your mind, however, Congress can control everything and the fight for liberty is over. 

Thanks to President Reagan, Ed Meese, and others who 30 years ago began reviving principled constitutionalism, we are equipped to fight this battle today.  No longer do our fellow citizens simply assume that the Constitution means whatever judges say it means.  No longer do the political ends always justify the constitutional means.  This week, Minority Leader Mitch McConnell and I circulated an amicus brief for Senators to sign that will be filed in the 11th Circuit as they consider this issue.  Thirty-two senators signed a similar brief that we filed in the district court last year and, after last November’s election, I hope that more Senators will be with us on appeal.

            Our liberty did not just appear out of thin air and it certainly does not sustain itself.  James Madison said that a well-instructed people alone can be permanently a free people.  Liberty requires limiting government through a Constitution controlled by the people.  Liberty requires judges who will be controlled by the real Constitution, the one that belongs to the people, rather than judges who control a Constitution that they make up as they go along.  President Reagan literally revived and re-introduced America to the tools that are necessary to preserve our liberty. 

            A few years ago, Michael Deaver, one of President Reagan's close advisers and his deputy chief of staff, edited a small volume titled Why I Am A Reagan Conservative.  If big things can come in small packages, this is it.  I was privileged to be one of 54 conservative commentators, grassroots activists, and elected officials contributing short essays.  I commend it to you because it is jam-packed with insights and tools that will help fight for freedom.  But it is the simple dedication in the front of the book that I want to use to close my remarks here today.  It reads:  To Ronald Reagan, who changed all of our lives.  That says it all.  Thank you for all you do for our great country and for inviting me to be with you today.

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