I think it was George Will who noted back in the 1980s that Republican presidents have been especially incompetent at appointing Supreme Court justices, such as William Brennan, Earl Warren, Harry Blackmun, and David Souter, but John Paul Stevens (appointed by Gerald Ford) is clearly in the running for the bottom rung of the ladder. His retirement was a thing much to be welcomed, even if it meant being replaced by a standard-label liberal by Obama.
There was a segment on Stevens this morning on NPR’s “Morning Edition” (yes, I was slumming it again) which shows why he was so clueless in his jurisprudence. He rejected the idea that the “original intent” of the framers of the Constitution could be any guide to the Supreme Court today. But in doing so he displayed his abysmal ignorance of the very original intent he so breezily dismissed. Let’s go to the tape, as they say:
Taking on the much debated idea of original intent, the retired justice disputes the notion that anyone today can, with total clarity, know exactly what the framers intended. Nor, he argues, should that intent be the be-all and end-all of the legal analysis. He points to the First Amendment freedom of religion guarantee as an example, noting that the leaders of the country in 1789 were all Christian, and their concern was to ensure that no particular brand of Christianity got government preference. [Emphasis added.]
The First Amendment’s religion clause “wasn’t intended to protect the Muslims or the Jewish faith or the atheists,” he says. “But once we started to analyze the clause, in case after case, we developed the rules that make it perfectly clear that the principle that was adopted was much broader than the specific purpose of the draftsmen … at the time. It’s a principle that goes beyond the original intent.” And that principle, he says, is that there can be no government preference for any religion, Christian or not, and no penalty for any religion or for nonbelievers either.
It is hard to be more totally wrong in such a short space, both on history and on the philosophical ground of constitutional originalism. The founders were well aware that the principle of religious liberty applied to all faiths. Apparently Stevens never read, for example, Thomas Jefferson’s Virginia Statute of Religious Liberty, which lays out the general ground for the universality of the right of conscience in worship. But an even better example of how the framers understood their principles and the philosophical ground on which they rested is President Washington’s letter to the Jewish synagogue in Newport, Rhode Island, which succinctly explains the ground of why religious liberty extended to Jews as well as Christians:
All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.
Of course, Stevens no longer believes in the natural rights of individuals. (Let’s recall he was the author of the majority opinion in the noxious Kelo case, among others.)