• Daniel Ethan Finneran

A Candidate Dies so that the Constitution Might "Live"

September 2018

To step back is to see through a wider scope and with history as our guide the issue gripping the country’s attention today. As though it requires my saying, the very issue of which I speak is that of Brett Kavanaugh’s now increasingly uncertain Supreme Court confirmation. Thought once a shoe-in of a pick, a consummate conservative to whom all future nominees would be made to measure up, Kavanaugh, his future, and the make-up of the Court for decades to come are now very much at stake.

The fifty-three-year-old U.S. Court of Appeals judge has been accused, hazily but seriously, of having committed an unpardonable crime at the age of seventeen. A professor of psychology at Palo Alto University, Dr. Catherine Blasey Ford, has come forth publicly, albeit somewhat hesitantly, to tell of an incendiary account from her past.

Aged fifteen and at the time attending an “all-girls” religious school somewhere around Maryland, Dr. Blasey Ford went to a house party at which Brett Kavanaugh was present. In that all-too familiar miasma of cheap alcohol, overwrought libido, and dissolute youth, things became touchy, and aggressively so. While all of the other party-goers reveled downstairs, Dr. Blasey Ford found herself alone in an upstairs room with the future D.C. circuit judge and Supreme Court nominee. Indeed, no sooner was it that she found herself smothered beneath Kavanaugh’s body. According to her, every pound of the callow, drunken, college-bound hotshot from down the street laid atop her with all his might.

So positioned and so imperiled, she was unable to break free. Kavanaugh groped her, silenced her, and attempted to remove from her a one-piece bathing suit and blouse. Drunk, bumbling, and ultimately failing at his unrequited pursuit, Kavanaugh’s best efforts were thwarted by his pal, Mark Judge—himself a middling, conservative author thirty years hence. However, lest you think Judge (Mark, that is, and not Kavanaugh) the hero in this sexually traumatic series of events, he leapt upon his buddy Brett in a playful, fraternal, even teasing way. He seemed every bit wanting to be a party to the debauchery. Nevertheless, it came to pass that Judge was the unwitting interruptus before the coitus could get underway. Now liberated and now scarred, Dr. Blasey Ford was sprung loose and able to scamper away.

Though cringe-inducing and poignant in its retelling, it’s impossible to know if the story above is in any way true. None present at the party has come forth to corroborate Dr. Blasey Ford’s harrowing tale. No contemporaneous notes were made in regard to the night, no intimate confessions received the morning next. Not until three and half decades later was the issue raised, and even then, it was done in somewhat obscure a way. While it may have been “lived” reality for Dr. Blasey Ford as the victim so many years ago, today what matters most is a combination of veracity (on the part of the accuser) and verifiability (on that of the circumstance). And, so far as this case is concerned, those two most essential ingredients for a criminal accusation lack.

It’s odd, then, in acknowledgement of that, that so many are looking for what’s not there. Democrats are looking for invisible incriminations, Republicans for a Catholic saint. One sees a sexual predator incapable of wielding the gavel. The other sees a conservative justice impugned without an iota of truth. In their illusions, both miss the grander point.

For all that abounds in the empty spaces that engulf this controversy, there’s something hidden in plain view. It’s the subtle recognition that this is all a political game. A shocker, no doubt, is the fact that this is about left and right. It’s about judicial activism and strict originalism—about a Constitution that’s living versus one that’s dead. For the former to be preserved (as it’s been for the past twenty-some odd years), the latter mustn’t breathe.

This moment of “Kavanaugh chaos” obscures the deeper question that this country must ultimately face. Simply put, it reads as follows: is our Constitution dead or does it live? Is it pliant or is it settled, is it fluid or concrete? Ought we have the ability to manipulate and re-interpret that hoary eighteenth-century document at will, or should we defer to its thoughtful prescience written by the New World’s greatest sages all those centuries ago? The accusations of fornication can be put aside—at least until their feasibility gains and their strength builds. The real scandal and the underlying question is what the new group of Supreme Court justices will do. Will it choose a path of enlivening the Constitution or letting it remain settled as it’s been?

Thomas Jefferson was, though perhaps at times unwillingly, a man of such an enlivened spirit and of restless life. Of many lives, really, as he seems never to have died. One need only look about herself today, and she’ll see that his memory yet pervades; his genius still enlightens us, his eloquence still inspires us, and his faults continue to remind us that even a philosopher can sin. Nevertheless, Jefferson seems to have warmed up to the idea, however late in life, that, like him, the Constitution should be restive, responsive, and alive. His understanding of the Constitution’s relevance in the changing tide of the nineteenth century is worth quoting at length.

In the inimitable words of Jefferson:

“Some men look at constitutions with sanctimonious reverence, and deem them like the Ark of the Covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.”

In many ways, Jefferson’s remark (written in the year 1816 to the Virginia author and lawyer, Samuel Kercheval) is profound. It shows a sort of high-minded ambivalence, a man torn between fine ideas and the crude necessities of political life. Really though, what else should one expect from that wisest and most learned of American statesmen? Though one is apt to find oneself lost in his thought, not much digging is needed to reach Jefferson’s point on this occasion.

Ever the radical (a paradox of his personality in and of itself and of which there were many more: he was an aristocrat who wanted democracy, a farmer who wanted the city life, a slave-holding abolitionist who couldn’t reconcile human freedom and personal debt) Jefferson anticipated the modern liberal’s view as it relates to the Constitution. In the italicized lines, we recognize his incipient, progressive bent. Jefferson, or at least the Jefferson seen in this light, appears to come down on the side of the judicial activist rather than the originalist.

Perhaps it’s for his not having had a say in the making of the Constitution that lands him on this side of the fence. During its construction in the late 1780’s, the cosmopolitan Jefferson was on business in France and far away from what would become the world’s greatest modern political document. Business with a touch of pleasure, one might add, as it was at that time he encountered the charming but spoken for Maria Cosway. Hers, and not that of Sally Hemings, is the name we forget. Through a short-lived dalliance with the married artist, however, Jefferson proved himself yet again to be the man of not only belles lettres but of lust and romance as well. Smitten though he was, with both Paris and paramour, Jefferson missed the drafting of the nation’s second most important document—the first being, of course, his Declaration. One can imagine the torment this roiled in him.

It’s for this reason that he may not have had a strong allegiance to the Constitution once it was made public for ratification. He certainly didn’t appreciate the way his friend and fellow Virginian, James Madison, shielded from him its true contents until just before they were released. By the time Jefferson could object to them from abroad, it was too late; a fait accompli, as his genteel hosts in France might say, the Constitution was finished and readied for at least nine of the states.

One could, if so salaciously inclined, go off and compare Jefferson’s and Kavanaugh’s sexual pasts. There’s at least some evidence that the former president fathered six children by Sally Hemings; a 1998 genetic sleuthing of the family tree reveals as much. On the other hand, one would be harder-pressed to find any evidence to that end as it pertains to Kavanaugh and Dr. Blasey Ford. What is knowable is not how each would treat the help and teen-aged girls, but how each would treat the Constitution if given the chance. Jefferson would bring it to life, while Kavanaugh would let it be. These next few weeks will determine in which direction that hallowed document goes.

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