For purposes of legal exegesis, which is to say as a matter of authority, this is perfectly well within the discipline; it is not EISEGETICAL but EXEGETICAL. There are plenty of ways to answer Roe v. Wade and its progeny as being defective forms of legal reasoning (including natural law) without the absurd consequence of tying our hands to the historical meaning even explictly contrary to the intentions of its authors, who understood it to be the charter of a nation to be applied by later generations, not merely some mundane catalog of then-current beliefs. Svendsen speaks like someone who has had no training whatsoever in Constitutional law, which has been an interest of mine since elementary school. Even the "originalists" like Scalia and Thomas, both of whom I respect a great deal as jurisprudes, don't hold to such a ridiculously hide-bound rule of interpretation. So what Svendsen considers an "unsound approach" is nothing other than the discipline of law, giving binding authority to texts, and where that is concerned, Svendsen knows nothing. I, on the other hand, have studied Constitutional law under Charles Fried, Richard Fallon, and Larry Tribe, so the reader can do the math. All I can say is that if legal exegetes interpreted Constitutional documents like Svendsen does, our legal system would degenerate to pure anarchy.
The problem with this lordly dismissal of the common lumpen is that, in a democratic republic, it does matter what the common lumpen happen to think, even of the Prejeans of the world hold the rest of us in contempt.
For the judiciary is a political creature—ultimately answerable to the electorate. Technically, the Federal judiciary may be insulated from direct accountability, but it depends on two other branches of gov’t to impose its will on the masses. It has no armies or police department at its disposal.
Unlike Federal judges, presidents and congressmen do have face the voters on a regular basis. It’s the Executive branch that enforces judicial rulings, while Congress wields an enormous degree of potential authority over the lower courts.
So Ivy League law schools don’t get to dictate judicial philosophy to the electorate. They can attempt to persuade us, but not to dictate. Popular sovereignty is king.
Indeed, Prejean’s “shut up and do what you’re told” approach is one reason that the liberal establishment has been losing influence over the years.
The judiciary has practical power to the extent that the other two branches voluntarily defer to it or implement its rulings. But if it oversteps its bounds, that can change. And if Prejean doesn’t like it, he can move to Brussels.
As Newt Gingrich points out:
Let met talk briefly about judges, and then I am going to talk about education and immigration. The issue of judges is not a complex one. It’s just a question of timidity. There is no judicial supremacy. It is an arrogation of the Warren Court in 1958, and has no historic precedent. Jefferson, when asked if there was judicial supremacy said that would be an oligarchy. Lincoln’s First Inaugural, in describing the Dred Scott decision of the Supreme Court—which extended slavery across the whole country, led Lincoln to run, and ultimately led to the Civil War—said we were not going to let a handful of judges redefine the American Constitution. It would be inconceivable.
So what do you do about it? Again, I am trying to embed this in historic fact. This is not theory. This is not ideology. This is fact. In 1802, the Jeffersonians, faced with courts deliberately packed by the Federalists, passed the Judiciary Act of 1802, which abolished over half of all the sitting federal circuit judges. The act didn’t impeach them; it simply said their jobs didn’t exist. They wouldn’t be paid, so they shouldn’t bother to show up. The judges were deeply offended. They promptly went to court, and the remaining federal judges essentially said, if we overrule the Congress, they’re going to abolish our jobs.
I cite this, because of the Ninth Circuit Court. We should just close the jobs of the two judges who said that it was unconstitutional to say, “One Nation, Under God” as part of the pledge. Let’s just say, “Terrific, you’re now retired.” I am citing this, because the first step to getting this done is to have people like you talk to your delegations, and then presently somebody will introduce a bill. Initially people will say that it’s very radical, but then as the courts behave more and more stupidly, people will get madder and madder. Finally, one morning we’ll do it, and then the judges who are left will realize that maybe they don’t want to be quite that bold.
This is a straight-out fight. The elected branches, the legislative and the executive, have every right to re-balance the judges under our Constitution. Remember, if you read The Federalist Papers, they refer to a division of power. There’s a balance between the three branches, so when the judges say that they are all powerful, the correct answer is, “No, you’re not.” The only way you prove that is to have the legislative and the executive branches take steps to change them.