Time to Reread Prof. Hadley Arkes on Romney's Failure to Follow Constitution

TIME TO REREAD Prof. Hadley Arkes' article in National Review, "The Missing Governor" (May 17, 2004):

Arkes is Professor of Jurisprudence at Amherst College. Here are excerpts, with commentary by John Haskins below.

On what Romney could have done:
…if the constitutional authority was really with the governor, to act for himself and the legislature, then it made the most profound difference that the governor flex that authority now himself: He could invoke his powers under the constitution; cite the error of the court in seizing jurisdiction wrongfully for itself; and order all licenses of marriage to be sent on to Boston, to his office, until the legislature, in the fullness of time, settled its policy on marriage…. But this argument over the error of the court, or the wrongful taking of jurisdiction, does not expire on May 17. That argument is still open, which means that it could be plausible for the governor to make that move at any time. But why should he make that move when receding has now become his signature tune?

On "conservative" lawyers: Romney could have pointed out here that the Supreme Judicial Court had actually violated the constitution by taking jurisdiction in a class of cases that the constitution had explicitly withheld from the courts. But as Romney contemplated his moves here, he could feel the drag even on the part of conservative lawyers. Lincoln's argument, they thought, was no longer widely understood, and any challenge to the court in this way was likely to set off tremors, even in their own circles. In that moment of holding back, it became clear that even conservative lawyers had come to incorporate, and accept, the premises that gave to the courts a position of supremacy in our constitutional schemes.

The conservative lawyers argued that new plaintiffs would form a class and seek an injunction from the court to enforce the holding in the Goodridge case. But they seemed to forget that the legislature has the authority to shape and define the power to issue injunctions.

John Haskins comments:
Exceptional conservative honesty! This reveals why we're losing. This is not only 'must reading." It's also must thinking.

All who are troubled by where America is heading MUST read Professor Arkes' NR column -- again if they have read it before. They must send this quote and the link to Arkes' article to anyone who needs to understand not only what is actually, all pretenses aside, an unconditional "pro-family" and conservative surrender of constitutional law, not only in here Massachusetts, but in case after case after case around the country. Vermont, California, New Jersey...

We are not just losing, we are surrendering. Most of our prominent "conservative" attorneys and law professors are not constitutionalists in any meaningful sense. Professor Arkes' article, now two-and-a-half years old, but still as fresh and urgent as the day he wrote it, hints at this. There are piles of irrefutable evidence to support this charge. And it indicts many of what I call "paycheck conservatives" -- including some who are running around soaking up tax-deductible donations and admiration playing the role of pro-family hero.

But many have long histories of endlessly and compulsively trying to find the middle ground and compromising the Constitution itself, while mocking and undermining behind the scenes all attorneys and pro-family leaders who try to hold the line. The result is a gradual collapse of constitutional democracy, parental rights, and the sanctity of childhood and the natural human family. In terms of jurisprudence, many of our "pro-family" lawyers and law professors are on the other side. We could name some of those directly responsible for covering up Mitt Romney's illegal imposition of homosexual marriage. The essential point is to understand that their surrender is at the spiritual and subconscious level. They believe themselves to be "pro-family", pro-constitution heroes. Their results over the years and their constant undermining of fundamental constitutional principles prove otherwise.

Professor Arkes, widely respected and head and shoulders above these other lawyers and professors as a constitutional scholar, names no names and understates his description of them in the most gentlemanly way. But read between the lines. This has been and continues to be a step-by-step surrender, negotiated case-by-case by our own "conservative" lawyers, law professors and pro-family leadership.

We can be silent no longer.