Posted on 7/22/2003, 9:40:35 PM by Vindiciae Contra TyrannoSCOTUS
The U.S. Supreme Court's recent affirmative action and sodomy decisions were attended by a great deal of debate: Does Grutter v. Bollinger point to the eventual end of racial preferences or does it entrench them? Does Lawrence v. Texas increase the likelihood of judicially mandated gay marriage? Even if you agree with striking down anti-sodomy laws (as I do), was Lawrence the constitutional way to do it? What are the permissible ways of achieving campus diversity under Grutter?
These are all important issues, but it is worth noting how much attention is paid to the political and policy concerns as opposed to the constitutional questions that the Supreme Court is called upon to resolve. Indeed, the rulings themselves seemed to be based in large part on political considerations. It is said that the Court follows the election returns, but nobody elected them to be a national super-legislature of last resort.
Whatever you think of either decision, they both read like political treatises in search of constitutional rationales rather than politically neutral applications of the written law. In Lawrence, Justice Anthony Kennedy wrote a majority opinion that overturned Court precedent on a divisive social issue even though they would seem to be at variance with the position on stare decisis he took in upholding legal abortion in Casey v. Planned Parenthood. Concurring was Justice Sandra Day O'Connor, who voted the opposite way when the question last came before the Court in Bowers v. Hardwick. O'Connor's majority opinion in Grutter seems to suggest that some of the affirmative action programs that are now constitutional will cease to be in 25 years.
In other words, these two justices apparently do not believe that the Constitution has any fixed meaning. Instead of explaining how they became persuaded that their own prior interpretations were mistaken, they seemed to be tailoring their rulings to the circumstances. It is difficult to escape the conclusion that they decided to vote the politically correct way first and work out a constitutional justification later. One wonders how they would have voted in a climate where elite opinion on these subjects was different.
Justices Kennedy and O'Connor, both Republicans appointed by President Reagan, are not unique in seeking to re-interpret the Constitution in this fashion. A great many highly pedigreed jurists and scholars regard this as perfectly acceptable, a way of treating the Constitution as a "living document."
During one of the 2000 presidential debates, Al Gore said that he would appoint justices "who understand that our Constitution is a living, breathing document." He suggested "it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people."
How ironic: Appealing to the Founding Fathers in order to rationalize a complete disregard for their intent in framing the Constitution. A written constitution that can be interpreted to mean the opposite of what those who drafted it intended is no constitution at all. The idea that the Constitution means whatever some branch of government says it means is inimical to the rule of law. Law, especially constitutional law, must bind the government as well as the governed.
Of course, the Founding Fathers did intend some flexibility and room for interpretation within the Constitution. Farsighted as they were, not even they could anticipate every issue that could be raised or every need of the new Republic. Just because technology changed to make trucks part of a postal service and an air force part of national defense does not mean that the Constitution must be changed. For greater changes allowing the federal government to assume new powers, they devised an amendment process. This is a built-in process to change the Constitution by soliciting the consent of the governed, in sharp contrast to the modern notion that it can be changed by the "reinterpretations" of nine unelected judges.
Our entire constitutional framework makes clear that it could not be any other way. The Constitution contains the enumerated powers that the American people delegated to the federal government. The only legitimate way to change those powers is to have the people consent to the changes. Contrary to Gore's assertion, the Founders would have unilateral changes to federal power by the federal judiciary, a branch of the central government, to be usurpation rather than part of the constitutional design.
Go back to before the Constitution was even written to the Declaration of Independence. This nation was founded upon the idea that government derives its powers from the consent of the governed. The government has no legitimate power that people did not first grant. A "living Constitution" turns this notion on its head, allowing the federal government to have powers beyond what is constitutionally enumerated, beyond what the people have consented to, according to the rulings of its own courts.
As Joe Sobran has pointed out, the "living Constitution" isn't even consistent in how it "evolves." Its "growth" almost always appears to be in the liberal direction. Rights to privacy that support liberal views of human sexuality consistently expand while explicit Second Amendment rights to bear arms contract. The First Amendment right to free speech is expanded to include topless dancing but contracted to exclude political speech subsidized by soft money contributions. The First Amendment's guarantee of religious freedom is interpreted to prohibit local governments from "establishing religion" by allowing Christmas displays in the town square, but not to regard relatively innocuous public school commencement prayers as free exercise.
Not everything that has been done in the name of the "living Constitution" has been bad. Sometimes state and local governments have exercised constitutionally legitimate powers in the service of unwise and even unjust laws. Other times legislative leaders have been maddeningly slow to respond to social needs and changes. In those cases, it is understandable why people are willing to resort to the courts to change the status quo by tweaking the Constitution a bit, even if they will come to regret the precedent later.
But the concept is irredeemably bad. Law can be changed, but it needs to have fixed meaning in order to serve as something other than the rulers' passing fancy. To treat the Constitution as something other than an independent law in itself is to render it useless as a limitation on government power and blur the separation of powers. A living Constitution may sound good, but it will kill the rule of law upon which our Republic rests.
Consequently, during Warren’s sixteen year tenure, the Court became a powerful societal force, striking down numerous long-standing historical practices while acknowledging that it was doing so without any previous precedent. [222] In short, the Court thus publicly affirmed that it had finally arrived at its fully evolutionary aspiration, no longer bound by history or precedent.
Under this current theory, judges are solely responsible for the evolution of the Constitution, and it is living and organic according to their decree. As Justice Cardozo acknowledged, "I take judge-made law as one of the existing realities of life." [223] And Chief-Justice Charles Evans Hughes (1862-1948) similarly declared, "We are under a Constitution, but the Constitution is what the judges say it is." [224]
Harvard Professor Steven Wise summarizes this radical revolution in legal theory occasioned by the adoption of Darwin’s principles:
"To understand the strong normative appeal of evolutionary models, one must first appreciate that American law, like biology at the time of Darwin, faces the problem of providing a theory of creation which does not invoke a Supreme Being." E Donald Elliott, "The Evolutionary Tradition in Jurisprudence," 85 Columbia Law Review 38, 91 (1985). Elliott, who believes that the manner in which law is affected by the ideas that it routinely borrows from other disciplines has been largely unexplored, sets sail by chronicling how the Darwinian idea of evolution has affected the jurisprudential work of such legal scholars as Holmes, Wigmore and Corbin. Id. See also Jan Vetter, The Evolution of Holmes, Holmes and Evolution, 72 Cal. L. Rev. 343, 362 (1984) ("Holmes’ The Common Law is first of all an account of legal change, and its object in this respect is to exhibit the workings of Darwinian evolution in law"). Evolutionary jurisprudence was often shunned during the middle half of the twentieth century due to that period’s association of evolution with Spencer’s racist and reactionary Social Darwinism. Elliott, at 59, 76. It is shunned no longer. Id. See Roger D. Masters, Evolutionary Biology, Political Theory and the State, in Law, Biology & Culture—The Evolution of Law 171 (Margaret Gruter & Paul Bohannon eds., 1983). [225]
Yet, is the fact that the Constitution is now a living, malleable, evolving document, necessarily bad? After all, society does change and should not necessarily be bound by decisions made two centuries ago.
Significantly, the framers agreed with this thesis—they understood that times would change and therefore so should the Constitution. However, they would have vehemently disagreed with the mechanism by which this change occurs today.
The framers made clear that when the meaning, and thus the application, of any part of the Constitution was to be altered, it was to be at the hands of the people themselves, not at the feet of the judiciary or through the usurpation of any legislative body. For this reason, Article V was placed in the Constitution to establish the proper means whereby the people might "evolve" their government. As Samuel Adams explained:
[T]he people alone have an incontestable, unalienable, and indefeasible right to institute government and to reform, alter, or totally change the same when their protection, safety, prosperity, and happiness require it. And the federal Constitution, according to the mode prescribed therein, has already undergone such amendments in several parts of it as from experience has been judged necessary. [226]
George Washington also warned Americans to adhere strictly to this manner of changing the meaning of the Constitution:
If, in the opinion of the people, the distribution or the modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed. [227]
Alexander Hamilton echoed this warning, declaring:
[The] Constitution is the standard to which we are to cling. Under its banners, bona fide [without deceit], we must combat our political foes, rejecting all changes but through the channel itself provides for amendments. [228]
Already, the people have "evolved" their Constitution twenty-eight times by abolishing slavery, granting full suffrage without regard to race or gender, replacing capitation taxes with progressive taxes, imposing term limits on presidents, reducing the voting age for youth, requiring Congress to face the electorate before a congressional pay hike can take effect, etc.
It is this method of "evolving" the Constitution set forth in that document which must be jealously followed. Therefore, if the belief in theistic origins, transcendent values, unalienable rights, or any other political doctrine established in our documents, is to change, it must be done by the people themselves, according to the process established in Article V. Any other method of change is an abuse of power and a usurpation of the rights of the people.
The real danger of societal evolution rests, then, not in the fact that corrections are needed but rather in the fact that those "corrections" are made by a small, elite, and unaccountable group—and often by individuals whose personal values do not reflect those of "we the people." Evolution and the Law:
For three decades, Holmes brought his distinctively Darwinian bias to the Court. He spoke candidly: "I see no reason for attributing to man a significance different in kind from that which belongs to a baboon or a grain of sand." Do Laws and Standards Evolve?
"I've been predicting this for 20 years - that ultimately this theory of the living Constitution will destroy us, it will destroy the federal courts," Scalia said. WorldNetDaily: Scalia: Supreme Court jester
Yes, the 9th amendment is the constitutional basis.
"What are the permissible ways of achieving campus diversity under Grutter?"
There is no constitutional basis for "compelling state interest...to achieve campus diversity"
Bizarre what they teach children these days about the Bill of Rights.
Without the NEA there would be no "living constitution" movement.
The former is certainly true, but the latter might not be if the Constutition gave Congress the power to "raise and support an Army", as it does say "provide and maintain a Navy". But what it actually says is "raise and support Armies", plural. The Air Force is an air Army, and thus no Constitutional amendment was required for it's creation in 1947.
To argue thusly you must show that the right to commit homosexual acts was right pre-existing the Constitution and Bill of Rights. Privacy doesn't cut it, because the BoR addresses privacy in the 4th amendment, so it can't be one of the "others" protected by the 9th. The 4th amendment addresses privacy, and it's a very limited right, only against unreasonable searches and siezures, not to do anything you please inside your domicile. And you can't use an "enumerated powers argument", because it was a law of the State of Texas, which has general police and common law powers, while the federal government does not. Thus the ruling can be seen not as upholding the 9th amendment, but rather violating the 10th.
The 2nd Amendment doesn't need any help, it prohibits an infringement of a right of the people, just as it's written. It applies to the states via the 14th amendments "priveleges and immunities" clause or at least it was intended to do so by the authors of the 14h, and understood to do so by its detractors.
The Court will not apply the "principal" to the RKBA, and it's unlikely they will apply it to the War on Some Drugs either. That could be overturned at the federal level on a lack of enumerated powers test in any event.
To argue thusly you must show that the right to commit homosexual acts was right pre-existing the Constitution and Bill of Rights.
Not at all. The fact that our rights to life, liberty, and property "pre-existed" our union is self evident. Under our constitution, even repugnant sex acts cannot be shown to be criminal unless there is a compelling reason. None was shown in Texas. Case closed.
Privacy doesn't cut it, because the BoR addresses privacy in the 4th amendment, so it can't be one of the "others" protected by the 9th.
Nope. An enumeration of a right does not deny another. Read the 9th again.
The 4th amendment addresses privacy, and it's a very limited right, only against unreasonable searches and siezures, not to do anything you please inside your domicile.
Not true. A mans home is his castle unless criminal acts are in progress or search warrents are issued. Neither applied in Texas. Case closed.
And you can't use an "enumerated powers argument", because it was a law of the State of Texas, which has general police and common law powers, while the federal government does not.
No State can violate our BOR's. See the supremacy clause, Art VI.
Thus the ruling can be seen not as upholding the 9th amendment, but rather violating the 10th.
The state of Texas cannot be delegated the power by its people to ignore our Constitution. We the people can amend our constitution, but even 'we' cannot violate its basic principles of individual liberties.
By that, I meant the war on some drugs at the federal level. The Supreme Court could and should do. Then if there's enough support in the country, an amendment could be passed to "enable" the federal government to prosecute such a "war".
As for the other, I should have added "IMHO". If they won't even take a RKBA case when the second amendment is so clear and ready to be wielded, why do you think they'll take one just to utlize a convoluted "due process" arguement?
"[T]he Constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize...But whether the Constitution really be one thing, or another, this much is certain -- that it has either authorized such a government as we have had, or has been powerless to prevent it." - Lysander Spooner, 1870
What a load of crap. This creationist would distract us from dealing with the critical issue of judicial activism in order to advance her own warped ideas.
Fine! two can play at that game! The 9/11 attacks have at their roots creationist theory.
Indeed. I hope this thread stays on a true and logical course of supporting the Constitution -- as written -- rather than degenerating into mindless evolution bashing.
Grant of power to the federal government???? Huh????
The 9th amendment is a "grant" of liberty to each individual. To be left alone by your different layers of government.
It is to be used by the judiciary to rein in the tyranny of the majority to "deny and disparage others (rights), retained by the people" by elected officials.
The first eight amendments "enumerate" fundamental rights, that were worth mentioning, to take out as much ambiguity as possible.
And as Justice Goldberg stated in Griswold v Connecticut, "The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments"
Comprende??
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