They were just short phrases in a newspaper commentary, but they expressed a view that’s often bandied about in fights over federal judicial nominees, particularly those of President Bush.

And they are such fictions.

Take, for instance, the claim that “conservative” judges “believe what the Constitution says, not what judges think it should mean.”

No offense to the authors, but parts of the Constitution are as open to interpretation as the question of what God looks like.

The First Amendment, for instance, says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Unless I’m mistaken, Justices Hugo Black and William O. Douglas were the last members of the Supreme Court who insisted that “no law” really meant that when it came to abridging free speech.

Does “no law” mean that Congress can’t block children’s access to online pornography? That Congress can’t direct the Federal Communications Commission to fine those who spout obscenity on broadcast television? That Congress can’t punish a miscreant who falsely yells “fire” in a crowded theater and causes a panic that results in the injury or death of others?

Sure, the word “privacy” appears nowhere in the Constitution. Does that mean the Founders contemplated allowing federal officers to walk into our homes without warning, listen to our pillow talk, rifle through our medicine cabinets, monitor our most personal decisions?

Wherever they stand on penumbras and emanations, I’ve got to believe that Republicans as well as Democrats, conservatives as well as liberals value the sanctity of their homes and personal relationships more than to tolerate indiscriminate intrusions.

The Constitution designates the president as “Commander in Chief of the Army and Navy of the United States,” which doesn’t specifically give him the war powers he is assumed to have. Where does the Constitution say that the president can unilaterally declare men captured during a not-specifically-declared war in Afghanistan to be “enemy combatants” not entitled to prisoner-of-war status but subject to be incarcerated indefinitely without knowing the charges against them, without consulting legal counsel and without access to meaningful court review of their situations?

That’s what federal courts so far have allowed President Bush to do, both with an American citizen and with foreign nationals, though a “conservative” Supreme Court has said it at least will determine what role the courts have in monitoring the executive branch’s exercise of its presumed authority.

As for the notion that “liberal Democrats” have illegitimately “advanced their agenda through the courts” by way of unconstrained radical judges, let’s step back just one minute for perspective.

It was “conservative” activists who urged the Supreme Court to abandon its 1966 Miranda v. Arizona ruling that said police must advise criminal suspects of their constitutional rights to remain silent and consult an attorney.

But Chief Justice William Rehnquist, a longtime Miranda critic, showing due respect for precedent, wrote for the majority in 2000 that Miranda was a valid constitutional ruling that couldn’t be overruled by Congress.

It was “conservative” activists who filed federal lawsuits in Texas and Washington state seeking – but failing – to abolish programs that fund legal services for the poor through interest on trust accounts held by lawyers.

And it was “conservative” activists who brought federal lawsuits in several states seeking to wipe out affirmative action policies at public universities.

A Reagan appointee, 5th U.S. Circuit Court of Appeals Judge Jerry E. Smith, wrote the 1996 Hopwood opinion striking down racial preferences at the University of Texas law school. But he didn’t stop there; he declared the Supreme Court’s 1978 Bakke ruling non-binding precedent.

A truly “conservative” judge would have given precedent its due while conspicuously noting his disfavor toward affirmative action and his misgivings about Bakke.

In fact, Judge Jacques L. Wiener Jr., appointed by President George H.W. Bush, did just that in a partial dissent: “… If Bakke is to be declared dead, the Supreme Court, not a three-judge panel of a circuit court, should make that pronouncement.”

In June, the Supreme Court pronounced Bakke very much alive.

Truth is, the Constitution often resembles a prism more than a pane of glass. And if tough judgment calls about it weren’t required, we wouldn’t need judges at all.

Linda P. Campbell is a columnist and editorial writer for the Fort Worth Star-Telegram.

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