Monday, April 18, 2005

 

The Living Constitution

The SAEN ran an op-ed on Saturday that calls for the impeachment of all judges who refuse to denounce the vague notion of a “living Constitution.” The author of the piece was Allan E. Parker of San Antonio who is president of the Texas Justice Foundation.

For those already familiar with the debate over strict constructionist
vs. broad constructionist interpretations of the Constitution, the article is fairly simple to surmise and can be summarized as such:
Liberal judges are bad and should be impeached. Conservative judges are good and should not be impeded by those nasty Democrats.

But for those not familiar with this debate, Parker provides these helpful definitions:

There are two major competing methods of interpreting the U.S. Constitution today. The liberal view espouses a "living constitution" whose meaning must be changed with the times by the U.S. Supreme Court.

So if one side espouses a “living Constitution,” does that mean the other side favors a “dead Constitution?” Never mind that, here is what Parker says conservatives favor:

The traditional "rule of law" is that the purpose of a written constitution is to have a fixed meaning with limits on the power of government.

“A fixed meaning with limits on the power of government.” That sounds nice, but what would it mean in practice? Remember that when the Constitution was written its freedoms and protections applied only to white male landowners. It was a document that tolerated slavery and indentured servitude. Women had no rights to vote or participate in government. Many of the major regulatory conflicts of our age had not even been conceived at that time when there was no electricity, automobiles, airplanes, telephones, computers and so forth. Would we have had a Civil Rights era with a court full of strict constructionists?

It would indeed be a “dead Constitution” worth little more than the paper it was written on if we treated it like an ancient relic written for a time long past. Fortunately, the Founding Fathers gave us a Supreme Court with the power to interpret the Constitution and apply it to today’s laws in such a way that it remains relevant as the centuries pass. The folks who object to this, in my view, do so only when a court case doesn’t go their way.

Parker makes his agenda clear when he claims that “the "living constitution" has removed prayer from public schools, created abortion rights out of whole cloth, created homosexual rights and possibly homosexual marriage in the future.”

In other words, the courts limited the government’s ability to sanction and promote particular religious views through government-run schools, gave women the freedom to control their own reproductive systems and have overturned certain laws targeting a particularly oppressed minority group. So as our society and our courts continue to expand liberty and freedom for all people, we continue to have folks like Parker who long for a time when those rights and freedoms were limited to the privileged few.
Comments:
Fortunately, the Founding Fathers gave us a Supreme Court with the power to interpret the Constitution and apply it to today’s laws in such a way that it remains relevant as the centuries pass.

Baloney. The Founding Fathers gave us a Constitution with a process for AMENDING it which is intended to keep it relevant. The Supreme Court was not even established as having the power of Constitutional review until Marbury v. Madison a quarter century later.

All of the civil rights legislation which you rightfully celebrate was accomplished not through judicial reinterpretation, but through the proper amendment process.

Although I do think the column was a bit too strident, that truth is that to have judges impose their subjective interpretation of the Consitution is anti-democraitc and counter to the rule of law.
 
So your contention here is that the Supreme Court for the past 200 years has been usurping its authority by interpreting the Constitution and getting away with it?
A lot of the Founding Fathers were still around when the Marbury vs. Madison case happened. Why didn't they speak up then and say "Hey, that's not what we had intended!"?
I think the Court has been doing exactly what it was intended to do, serving as a check and balance on the other branches of government, and these cries of judicial activism are just sour grapes from the folks who find themselves on the wrong side of certain court decisions.
 
A lot of the Founding Fathers were still around when the Marbury vs. Madison case happened. Why didn't they speak up then and say "Hey, that's not what we had intended!"?

Goodness, Mike, Jefferson wanted to strangle John Marshall. Get your tuition back from that Aggie history teacher!

these cries of judicial activism are just sour grapes from the folks who find themselves on the wrong side of certain court decisions.

I guess we'll see about that when Roe v. Wade is overturned.

Of course, the truth is Roe V. Wade will be overturned because it was a ridiculous legal decision, not because there is some new balance of power on the court.
 
I was ready to argue but it has already been said very well. "Baloney. The Founding Fathers gave us a Constitution with a process for AMENDING it which is intended to keep it relevant. The Supreme Court was not even established as having the power of Constitutional review until Marbury v. Madison a quarter century later."
indeed.
 
Come on guys, you can't seriously be suggesting that conservatives are opposed to the idea of judicial review. I don't think even Antonin Scalia would go along with you on that one. Without Marbury vs. Madison the court would have no power to provide a check and balance to the other branches of government and the Constitution truly would be a dead document without the Supreme Court to back it up.
And with judicial review necessarily comes judicial interpretation (which sometimes favors the right and sometimes favors the left). To cast all of this aside would turn our history on its head. This would not be the same country it is today and very likely may not have survived at all.
We should celebrate the fact that we have an independent judiciary that still enforces our 200-plus year old Constitution. You can whine when they don't make decisions you like, but asserting that they are doing something wrong by interpreting the Constitution in the first place is nonsensical.
 
you can't seriously be suggesting that conservatives are opposed to the idea of judicial review...And with judicial review necessarily comes judicial interpretation (which sometimes favors the right and sometimes favors the left).

Let's get a little specific, then, Mike. Find the section of the 14th Amendment which supports the right to abortion on demand. I'd like to see it. If you cannot find it, then perhaps you can then explain this "interpretation" thingee a little more...
 
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