March 08, 2009
Shredding the Constitution
Had a discussion tonight with friends that ranged far and wide, at one point delving into the stinking intellectual morass that is appellate law, as practiced (and made up on the fly) by members of the Supreme Court (both California and U.S.).
I am a firm believer in "originalism," or Constitutional analysis based upon how Americans understood what they were getting at the time the Constitution, the Bill of Rights, and the Amendments thereto were adopted.
Anything else, any other method of judging, is merely outcome determinative, making it up out of whole cloth, to give the individual justices the result they prefer, the Constitution be damned. You see, if the Constitution is a living, breathing document, as liberal scholars and judges fancy it, then it has no fixed meaning, and therefore we are not bound by any permanent understanding of what it meant then, what it means now -- and what it will mean in the future.
In the post-modernist academic world of deconstructionist linguistics, nothing has a fixed meaning; we each enjoy equally valid interpretations of the world, equally idiosyncratic usages of language, our realities unique, like snowflakes.
In legal, constitutional terms, a living, breathing Constitution means whatever a judge says it means.
Period.
Finito.
The End.
I wish I could say that any of this was original, but U.S. Supreme Court Associate Justice Benjamin Curtis beat me to the punch by about 152 years.
When Chief Justice Roger Taney issued the Dred Scott decision that year for the Court, he used the now-valued liberal technique of trashing the plain meaning of the Constitution to invent new rights.
Of course, Taney used these new-found rights to return Mr. Scott, a former slave, back into bondage, overturning the Missouri Compromise -- which sought to ban slavery in new states -- as unconstitutional.
Justice Curtis, in his dissent to the majority opinion, wrote:
“[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.”
It's fine when the judges who are making it up do so in favor of policies you favor, but this is a power conceded at great peril, for while you may be happy with how your black-robed overlords rule today, tomorrow's crop of bewigged tyrants might not believe as you do.
Freed from the shackles of the Constitution's text, Taney and his associates returned Dred Scott to slavery.
It's not difficult to come up with a scenario in the near future wherein the U.S. Supreme Court issues a ruling that gores an ox near and dear to the hearts of many who currently revel in this fundamental lawlessness.
It'll be interesting to see who then cries loudest for a more principled take on analyzing and applying the Constitution.
Posted by Mike Lief at March 8, 2009 09:47 PM
| TrackBack
Comments
Actually the discussion goes back to the 1798 case of Calder v Bull. Justices Chase and James Iredell got into a public argument, recorded in the seriatum opinions of the day, about what standards a court should use in reviewing the acts of the legislature. Chase offered the opinion that there were natural laws that were uniquely within the power of judges to determine, upon which courts were entitled to rely in interpreting legislative acts. Iredell differed, arguing that any decision based on natural law would only be based on a simple difference of opinion among judges because natural law had no fixed rules or boundaries. Iredell stated that judicial review should only be exercised based on express constitutional or statutory limitations.
Iredell served during the disorganized formative days of the Supreme Court, and he died before John Marshall became the chief justice. Had he lived, it seems likely he would have provided more than the token resistence met by Marshall in expanding the role of the federal judiciary.
So, why doesn't Iredell have his picture on a tee shirt?
Posted by: The Little Coach at March 9, 2009 12:40 PM