Great consternation exists today, and rightly so, of the concept of activist judges, and strict interpretation of the Constitution vs. viewing it as a “living and malleable” document. In the “progressive” approach to justice, it’s acceptable to bend and shape the Constitution to meet personal morals and ethics. Indeed, if the Constitution is open to so much tinkering and interpretation, why bother to have one at all?
The new President has made comments indicating that he is troubled when strict interpretation of the Constitution results in decisions that are “insufficiently empathetic.” In a paean to judicial activism, his qualifications now include a litmus test for candidates conforming to his view of the Constitution as described above. (Read living and malleable). As he quotes: “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book.”
Now that we have identified the Chief Executive’s position on constitutional interpretation, let’s quote a few of the Constitution’s sections and review their relevancy to the current political and cultural climate. This is best viewed through a paradigm of strict constructionism vs. the President’s view that interpretation should be something more than “just abstract legal theory.”
Article 1, Section 9. “The Privilege of the Writ of Habeas Corpus [show proof and evidence] shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Assuming most clear thinking citizens would agree that 911 represented an invasion threatening the public safety, then President Bush had constitutional authority to suspend the Writ of Habeas Corpus. He never came close to doing that, but complaints resounded from the left about the supposed violation of the Constitution regarding airport security, putting mosques under surveillance, wiretapping suspected terrorists’ internet traffic from overseas, etc.
Additionally, regarding concerns about Guantanamo detainees, the Constitution applies to American citizens, not foreigners; Read for example, Amendment VI: “… the accused shall enjoy the right to a speedy and public trial…”. The current administration’s “situationally relevant” interpretation of the Constitution would allow this to apply not only to foreigners, but also non-uniformed foreign combatants on a battle field … it doesn’t. (For that matter, nor does the Geneva Convention).
In addition to our current security situation, judicial activism has also been blossoming around other issues for decades. Most of these activist interpretations are viewed by conservative/constructionist constitutional scholars as lacking in any sound constitutional basis. For example, the 14th Amendment states that: “…nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of its laws.” This along with the 13th and 15th Amendments finally freed the slaves and guaranteed them due process, and is considered the Equal Protection Clause. The courts over the last few decades have used this due process clause to create a distorted interpretation of these amendments to legislate from the bench everything from gay marriage to forcing the Virginia Military Institute to recruit women students. (Note that no constitutional mandate has been invented to force Howard University or Smith College to recruit white male students, public or not). To make abortion a “right to privacy,” Justice Sandra Day O’Connor actually referred to this clause in the 14th amendment (also written and intended to allow former slaves access to the courts) when deciding in favor of Roe v. Wade. This represents a strained interpretation of constitutional principles among those of us that believe in the concept of blind justice.
I’ll finish with a restating of the 10th Amendment to the Constitution followed by a troubling quote:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
– Amendment X
Now compare this amendment to the following statement by a current Supreme Court justice that should give pause concerning activist interpretation of the Constitution’s principles:
“We must never lose sight of the fact that the law has a moral foundation, and we must never fail to ask ourselves not only what the law is, but what the law should be.”
– Justice Anthony Kennedy
This statement reflects a Supreme Court justice who believes it is up to the nine members of the court to make decisions that would create or change laws, as opposed to the above amendment which relegates law making powers to the federal and state legislatures. The job of the courts is to decide the constitutionality of our lawmakers’ decisions, not create or modify legislation based on current social trends. Since Justice Kennedy’s vote many times is the court’s swing vote, this should be especially disconcerting given a new Chief Executive who distances himself from Amendment X, and who gravitates towards these types of positions.
Sonia Sotomayer has just been nominated to replace Justice Souter. In one ruling, she overturned a lawsuit filed by non-minority firefighters against New Haven, Ct., when the city threw out the results of a promotional exam when no minority candidates passed. She has also been identified by the President as someone who will make decisions based on “compassion,” and has stated herself that her decisions will be based on her lifetime experience as a female Hispanic. (As opposed to blind justice in constructionist interpretation.)
It appears the deep hole our founding fathers’ original intent is disappearing into is getting larger by the day.
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