The Magazine

Beyond "Strange New Respect"

From the March 14, 2005 issue: The Stevens-Ginsburg billet-doux to Justice Kennedy.

Mar 14, 2005, Vol. 10, No. 24 • By DAVID M. WAGNER
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Or Stevens may have had in mind Marshall's dicta from McCulloch v. Maryland, about how "it is a constitution we are expounding," not a civil code, and a Constitution "intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." But it was the extent of Congress's powers, not the Court's own, that were at issue in McCulloch. These dicta are Marshall's explanation for construing Congress's powers broadly, allowing Congress some freedom to decide among various means of carrying out the powers assigned to it by the Constitution. Yet we constantly see these passages cited as though they announced a judicial power to change the Constitution--even though a Constitution laboring under such a rule would be ill suited to "endure for ages to come," since its meaning could change overnight by a poll of nine judges, as we saw last week in Roper.

Then comes the money line: "If great lawyers of his day--Alexander Hamilton, for example" (Justice Scalia quotes Hamilton at the opening of his dissent, you see)--"were sitting with us today, I would expect them to join Justice Kennedy's opinion for the Court." How nice. What next--carve Kennedy's visage on the Court's wall after they get rid of Moses?

Historically, the most successful conservative appointees to the high court have been jurists who had previous Washington experience, and who, despite that demoralizing experience, have a proven record--during or post-Washington--of defending their principles in the crucible of debate. Others, whose experience has been entirely in (say) Arizona or New Hampshire or California, find the plaudits of the media and the Georgetown A-list to be a bargain if all they cost is a retreat from certain conservative principles that one was, on second thought, not all that attached to anyway.

In Thomas Mann's novella Mario and the Magician, even people who think themselves strong-willed succumb to the sinister Cavaliere Cipolla, because they find, in the event, that independence of mind is really rather a burden. The only one who resists is a hot-blooded Italian . . .

David M. Wagner is associate professor of law at Regent University, and blogs at ninomania.blogspot.com.