That was quite a speech Senator Clinton delivered the other day at Rutgers University. It consisted largely of an attack on the Federalist Society of conservative constitutionalists. Mrs. Clinton asserted that “There is a concerted effort on the part of the Federalist Society, of many in this administration, and many currently on the federal bench, and others waiting in line to be confirmed, that is absolutely dedicated to turning back the clock across the board on civil rights.” Aside from her attack on an organization of honorable people that seeks to uphold the principles of our nation’s founding, she was clearly smearing President Bush’s nominee to ride the U.S. Court of Appeals for the District of Columbia Circuit, Miguel Estrada, whom she later called “extremely radical…on the far-right hand of the continuum.”

What is illuminating is just what Mrs. Clinton considers “radical” and “far-right” when it comes to judicial philosophy. That can be gleaned from the part of her speech where she attacked the Rehnquist Court. Most notably, she declaimed against the Court for “asserting [its] authority to be the sole and final arbiter of constitutional meaning.” She claimed that the Court had done so in a series of recent cases where it ruled that the Congress had overstepped its authority under the Commerce Clause of the Constitution. “The Court may have the final say on constitutional interpretation, but it should not have the only say,” she said.

The flaws in Mrs. Clinton’s thinking on this matter are basic. First, the only “sole and final arbiter” of the Constitution’s meaning is the American people; it is their will that is expressed in our founding document and which every branch of our government operates within and interprets to some extent. The Congress and the president have wide latitude to govern, but the Judiciary exists to check the other two branches. Our founding fathers realized that the popularly elected branches of government would be subject to the passions of politics, and thus the Judiciary would have to step in from time to time to reign in their power. Thus has the concept of judicial review existed from the early days of our republic and the case of Marbury v. Madison.

In her speech, Mrs. Clinton complained that the pieces of legislation that the Court overturned — including the Gun-Free School Zones Act and the Americans With Disabilities Act — were “passed in most instances by overwhelming margins.” This, of course, entirely misapprehends the Court’s role. There are, after all, places where Jim Crow passed by overwhelming margins. The assignment of the Court is to decide whether any legislation, whatever its margin, conforms to the Constitution. When Mrs. Clinton complained that one recent case “was the first time in 60 years that the Court imposed a substantive limit on what Congress can and cannot do under the Commerce Clause,” some of us might have simply said: “Good.”

The desire to uphold constitutional principles of limited, federal government does not betray an urge to return to an era before the civil rights movement, no matter what New York’s junior senator intimates. Mrs. Clinton may disagree with the judicial philosophy pursued by the famous Federalist Society and by the Rehnquist Court, not to mention that which the Bush administration wishes to promote. But it is sad to see the senator abjure serious argument about the law as she smears a brilliant nominee, who frightens liberals because not only is he Hispanic, but he is also conservative.