How to Spot a Legal Progressive

How to Spot a Legal Progressive
Maggie Gallagher 7-1-10

Supreme Court nominee Elena Kagan seemed taken aback when asked a simple question at her confirmation hearings: "Are you a legal progressive?"

"I honestly don't know what that label means," Kagan said.

Let's help professor Kagan out. McDonald v. Chicago, the Supreme Court's decision on gun control this week, provides a pretty good window into the key differences between legal progressivism and a more restrained judicial approach.

Judicial restraint does not mean the Supreme Court doesn't vigorously enforce the rights that are in the Constitution. It means a justice doesn't creatively interpret text to protect rights that are not in the Constitution -- or worse, to ignore those that are. These two things often go hand in hand.

How can you spot a legal progressive? A legal progressive is someone who believes rights that are not stated in the Constitution, but inferred or extrapolated, should be given more weight than rights plainly enumerated.

A legal progressive is someone who knows there is a fundamental constitutional right to gay marriage, for example, even though the Constitution says nothing directly about marriage, but that a law-abiding individual has no right to own a gun, even though the Constitution clearly states that "the right of the people to keep and bear arms shall not be infringed."

A legal progressive believes that sexual liberty trumps religious liberty, even though the Constitution says nothing about sex, and guarantees explicitly the right to free exercise of religion. The Constitution mysteriously confers an unlimited right to an abortion, but the core right to life mentioned in the due process clause is reserved for criminals facing the death penalty. Human beings living in their mother's wombs need not apply.

I could go on and on. Very smart people have developed very sophisticated legal rationales for their views. But they come down to saying, "Words mean what I want them to mean, if necessary." Words express values, values evolve -- therefore, a legislature that passes a law or a constitutional amendment never knows what it will mean. That's up to judges to decide.

The authority of the democratic process is thus as thoroughly undermined by legal progressivism as is the legitimacy of the Constitution.

What's the opposite view? The words of the Constitution mean what they say, what the people who passed them understood them to mean. If under the 14th Amendment the states are forbidden to abrogate any of the Bill of Rights, the Second Amendment counts as much as the First or the Fourth.

Both at the time of the adoption of the Second Amendment and at the time of the passage of the 14th Amendment, the right to keep and bear arms was considered a fundamental civil right.

The dissent of Justice John Paul Stevens, the court's oldest member, is a fine example of legal progressivism. He redefines even the idea of judicial restraint to mean: We judges get to decide which rights we want to enforce and which ones we can ignore.

As Justice Antonin Scalia points out in yet another of of his cuttingly candid opinions: "The subjective nature of Justice Stevens' standard is also apparent from his claim that it is the courts' prerogative -- indeed their duty -- to update the Due Process Clause so that it encompasses new freedoms the Framers were too narrow-minded to imagine."

Justice Stevens worried about majorities getting their way, but he doesn't worry about judges always getting their way.

"That such usurpation is effected unabashedly -- with 'the judge's cards ... laid on the table' -- makes it even worse," writes Scalia. "In a vibrant democracy, usurpation should have to be accomplished in the dark. It is Justice Stevens' approach, not the Court's, that puts democracy in peril."