In 1802, as President of the United States of American, Thomas Jefferson wrote to Joseph Priestley, who was one of the foremost scholars of that time and a friend of his, saying, "Though written constitutions may be violated in moments of passion or delusion, yet they furnish a text to which those who are watchful may again rally and recall the people. They fix, too, for the people the principles of their political creed."
In Article VI of the Constitution of the United States it states that this document is to be the supreme law of the land. Because of that it was designed to supersede or take precedence over any and all other laws. In Article I, section 7 it gives sole authority to Congress for making and passing "bills" while mandating that they cannot become law until the President of the United States approves them. Article III, establishes a Supreme Court and allows for a system of "inferior courts" and section 2 of that article gives these courts judicial power extending "to all cases, in law and equity, arising under this constitution [including] the laws of the United States."
The framers of this document envisioned that one of the functions of the Supreme Court in relationship to laws enacted by Congress was "to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body" (Alexander Hamilton, Federalist Paper #78). This is known as "judicial review" where the Supreme Court reviews the constitutionality of laws passed by Congress and renders a judgment on whether they are in compliance with the supreme law of the land. In this way, both the Congress and the Executive branch are prevented from straying from "the principles of [our] political creed" as Jefferson wrote.
However, from the time the Constitution was written and ratified into law there has been a controversy over how it is to be interpreted. Today there are two major schools of thought on this subject. One is that we are to interpret the Constitution according to the intent that the framers of our government meant when they wrote that document. This is known as "original interpretation" which involves understanding the original purpose that our founding fathers sought to convey in every clause and, in some cases, every word they wrote into the Constitution. But to do that, it is first necessary to have a clear and accurate understanding of our history and what prompted the framers of the Constitution to write what they did. Those who subscribe to this way of interpreting the Constitution are known as "originalists."
The second theory of how to interpret the Constitution is based on the idea that the Constitution is not a set of rigid, inviolate rules that can never be changed but rather it is a "living, breathing document" that is meant to change with the times. According to this theory, as the nation changes its attitudes about what is acceptable behavior and what is not, the Constitution is to be interpreted in such a way that it conforms to the current thinking of the time. Thus, instead of viewing the Constitution as something that is incapable of being altered, there are those who say that what our founding fathers gave us was something that was quite flexible and meant to adapt to the needs of each generation of Americans. This is known as "judicial activism" where the judge actively decides what the words in the Constitution means in light of the current thinking of the day.
Up until recent times, the Constitution has always be interpreted according to it's original intent but today, in nearly every law school and in most civic classes, judicial activism is promoted as the proper way for interpreting the Constitution and they base their reasoning for this on a number of arguments. The first and most often used is that our founding fathers could not possibly have foreseen or anticipated every situation that would eventually arise, therefore they could not possibly write a document that could covered every eventuality. If this is true then it is said that what they gave us was a basic governmental framework, sort of like a skeletal structure or a scaffolding, that we use to build the kind of government that meets our needs. According to this theory, the Constitution is just a set of broad guidelines that give us some general direction but doesn't really confine us to just one way of doing things.
To buttress this viewpoint, they cite that the Constitution specifically allows Congress and the President to pass laws. They argue that if the Constitution was meant to be strictly interpreted as written and never changed then there would be no need for the founders to put this provision in it. They say the fact that Congress was given the authority to make laws is proof that the Constitution was originally designed in such a way that it not only could be changed but was expected to be changed by each generation of Americans. They further argue that since Congress is made up of those who represent the people as a whole and laws are enacted by Congress this shows that the Constitution was meant to change according to the current demands of public opinion.
Another argument that is used to promote judicial activism is known as the acorn theory. An acorn is a seed that doesn't look anything like the tree it will someday become but without the acorn there would be no tree. In the same way it is said that the Constitution is like the acorn. It is the seed which our founding fathers gave us and, as each generation waters that seed, it grows and develops into something different looking than what it started out as originally. And, just as a farmer prunes and trims his tree to form it into the shape he wants, so also we the people, through our elected representatives, trim and prune the Constitution in the way we interpret its words so that we form and shape it into the kind of document that meets our current situation.
A third argument is that the Constitution is meant to be "moderate," meaning that it helps prevent the people from passing laws that are extreme. For example, in the past it was the normal practice for people to be publicly whipped or for there to be public hangings but today such acts would be considered extreme. In 1787 when the Constitution was written it was common for people to own, buy, and sell slaves but today such a practice would be considered extreme. It is said that in this way the Constitution protects the nation against extreme behavior on both sides of the spectrum as we continually change it to meet the common standards of acceptable behavior.
Those who advocate judicial activism say that if we interpreted the Constitution according to what the thinking was at the time when it was written then we would not have had the right to abolish slavery or ban public punishment. The fact that we have departed from the way things were done in the past is further proof to those who believe in judicial activism that the Constitution was meant to change over time to fit the needs of a changing society. For this reason they find it perfectly acceptable to see things in the Constitution that aren't there and aren't even implied while dismissing things that are in there by claiming they're no longer relevant.
However, all three of these arguments are based on false reasoning. The first is that it lacks any historical foundation. While such points of view may sound philosophically logical there are no statements from our founding fathers that support this kind of thinking. In fact, nearly all the historical documents we have, both official and private, made by all of our founding fathers clearly shows that the Constitution was meant to be unchanging.
The reason for this was simple: They wanted to create a law that was so iron-clad that no one could usurp enough power where they could take away the freedom of the American people. With deliberate forethought, they tried, to the best of their combined wisdom, to create a form of government that would prevent people of unscrupulous character from tyrannically ruling over the American public. This included protecting the rights of all citizens from even the will of the majority. This is why a bill of rights was later added as a condition for ratification by some of the states.
The idea that the Constitution was to be changed to fit public opinion was something the framers sought hard to prevent from happening for they knew from history that people can be whipped up into a state of excitement and passion where they can be easily led to enact laws that were against their own best interests. That is why the writers of the Constitution hotly debated nearly every word and every clause found in that document and why it is so important for us today to understand the original intent behind their words.
From everything written by our founding fathers and others, both before and after the creation of the Constitution, it is abundantly clear that they were intent on making a contract that would bind all future generations of politicians to follow a strict course of behavior while in office. And the reason for this was that they were very much aware from their study of history that most men, when they get even a little power as they suppose, are tempted to exercise unrighteous dominion over others.
Rather than thinking that the Constitution was to be added to, fleshed out, or altered by future politicians who would somehow be wiser and more sympathetic to the needs of the people than our founders were, those who created our new form of government endeavored to make sure no one person or group of people could change what they had done. The reason why they made the Constitution the supreme law of the land is so that no other law could ever override its mandates. And, indeed, more than 200 years later, not one word of the Constitution has been changed. Instead, what activist judges seek to do is change the meaning of the words.
This leads to the second fallacy of judicial activism which concerns correctly understanding what the Constitution is and what it was designed to accomplish.
It is true that things change. At the end of the 1700's and the beginning of the 1800's most people were farmers, there was less than 3 million Americans and the most common form of transportation was the horse. There were no highways, telegraph, or trains and the industrial revolution was decades from beginning. However, today most Americans, ride on superhighways at speeds unthought of in 1789, go vast distances by plane, work in clean offices and own their own homes equipped with televisions, computers, air conditioners, cell phones, and automobiles. We have walked on the moon and have rovers exploring the surface of Mars. In the area of technology we are far more advanced than those who lived here two hundred years ago.
But in matters of law, not much has changed. The practice of law is not concerned with advances in technology but rather is based on resolving the conflicts in human behavior which, over the last six thousand years, hasn't changed. Whether someone's physical property, intellectual property, or electronic property has been stolen, stealing is still stealing and the same law applies to all such situations. Making a contract, whether by a handshake, the drawing of blood, swearing an oath, etching it in stone or writing it on paper has always obligated two or more people to perform certain duties or tasks since before the Roman Empire began. The selling and buying of property in all of its many forms has existed since the first Egyptian dynasty.
Because of this truth, the Constitution cannot become outdated simply on the basis that we've have become more technologically advanced. The reason why is because the Constitution is a law that governs human behavior and is based on the idea that man has certain inalienable rights that no one can or ought to take from him. Furthermore, many of the concepts found in our supreme law date back to those found in the ancient Greek government. To say that parts of the Constitution are no longer relevant in our day and age is to say that human behavior is no longer what it was two hundred years ago. Such a statement is obviously false.
The purpose of the Constitution was never intended to control or regulate every aspect of America life. Its main purpose was to enshrine into law those principles of government that are meant to protect and preserve our liberties. Therefore, it prescribes a way for men to make laws and how those laws are to be administered as times change as long as they are done in a way that doesn't violate our freedoms. As such, the Constitution does allow changes to take place as society evolves but it does so in a way that protects the unchanging principles of our political creed.
The Constitution makes provision for change in two specific ways. The first is by giving Congress the express task of initiating and writing laws. The only power that the President has in this process is either to approve or veto legislation sent to him by Congress.
However, as has already been stated, to make sure that Congress doesn't pass any law that violates the mandates set forth in the Constitution, our founding fathers established a Supreme Court, that has the authority to strike down those laws that violate any provision found in the Constitution. It is in this sense that in rendering their judgment, those justices who sit on the Supreme Court have a duty and an obligation to abide by the original intent that the framers of the Constitution had when they wrote that document. To do otherwise is to change the very document that our founders created and which, by 1790, all thirteen states had agreed to abide by.
The Constitution is a legal and binding law upon the courts as it is upon Congress and justices have as much of an obligation to abide by its principles as does Congress or the President. When judges interpret the Constitution according to what they think it should mean, rather than what the framers intended for it to mean, then they are, in effect, rewriting the Constitution according to their own personal preferences. This is not what the framers ever intended to happen.
But our founders also knew that over time all societies change their views about many things and so they prepared a way that the Constitution itself could be amended without being changed. Article V specifies two ways this can be done but neither way is easy. The reason for this was to prevent hastily drawn or ill conceived bills from quickly being rushed into law at a time when the American public was in a state of emotional excitement over it. The process for change described in the Constitution was deliberately meant to give the proposed amendment an abundance of time for deliberation and debate and to have it reflect the view of the vast majority of Americans. What they also tried to prevent was having one person or a select group of people amend the Constitution instead of having it amended by the voice of the public through legislation of three-fourths of the states.
It is the text of the Constitution that's important because it contains the principles of our political creed and it is important that we always remember that fact. The framers were very deliberate in their choice of words, what they put in and what they left out. The criteria that should be followed in understanding the Constitution is to follow the reasonable intent of its words and the principles they sought to convey. That is the only safe way to interpret it.
The reason for this is that whenever the Supreme Court makes a decisions they are making laws that are every bit as binding on the American public as any anything passed by Congress. Since federal judges are not appointed by the voice of the people, in a sense they are legislating without representation. But as long as the decisions they make are in keeping with the intent of the Constitution then our liberties and freedoms are safe, but when they render a decision that violates the original intent of the founding fathers, they have, for all practical purposes, amended the Constitution without giving the people a voice in the matter. In such cases, they have circumvented the safeguards that were deliberately placed in there to protect us from human folly.
Although it's true that not all judges see things the same way, yet if we say that our founding document should be interpreted according to the norms of a changing society then we have no criteria for understanding it. It is subject to constant change depending on the ideological attitude of the judge. One judge may feel abortion is right and another judge may feel it is wrong but abortion, or any other subject, isn't the real issue for them. The real issue is: Does the case brought before a judge violate the text and intent of the law? That is the only decision a judge has the right to make. It is not his right to determine the morality of the case before him. Judges are lawyers, not the philosophical guardians of what is good for society. If a law is morally bad it is up to Congress to change it, not the courts.
To put this in perspective, suppose that a city council, after receiving numerous complains of children having been struck by speeding cars, voted to lower the speed limit in all residential neighborhoods to 10 mph. And let's suppose that this law was supported by the majority of people living in residential neighborhoods. Since that is the law of the city, it is the duty of the courts to enforce it according to the intent for which it was written.
But suppose a judge decided to interpret the city law to mean that a person only had to go 10 mph if there were no children in sight simply because he doesn't agree with the law that the city council had passed. Such a decision would not only violate the intent of the law and the wishes of the people who voted for it but he would have rewritten the law without letting the voice of the people be heard.
Or imagine entering into a legally binding contract with someone, according to the understanding that each party had but then having a judge change the terms of the contract from the bench simply because he didn't agree with the intent of the original parties. This is what federal judges do when they "interpret" the Constitution according to the social norms of the day instead of seeking to remain faithful to the original intent of the founding fathers.
If judges could interpret the laws as they saw fit, we could no longer depend on the court system for protection. It is the rule of law that gives us stability in our affairs and what we depend on to know what is acceptable behavior. It's like an anchor that keeps us steady in the raging storm of human conflict. But, if the courts were allowed to decide that what was right yesterday is wrong today simply because they want to ignore the intent of the law when it was made and could interpret it the way they thought it should be, that would be like anchoring a boat to a floating piece of wood that would shift and move with every wind of new idea that came along.
But, since we, the people, don't directly vote on who sits on the Supreme Court or on any of the Federal courts, what can we, the average person, do if judges interpret the Constitution according to their own personal preferences instead of remaining true to its intent? In the short term, not much. However, the problem can be solved but only when we, as the public at large, have a correct understanding of what the Constitution is, what it says, and what it is meant to do.
Since it is our representatives in Congress who vote to put someone on the federal bench, then it is up to us, the American public, to support and help get elected those who have the same understanding of our supreme law as we do. But when the American public is ignorant of why our founding fathers gave us our Constitution and how important it is to follow the principles it sets forth, then they will blindly elect people with no idea of how they will appoint federal judges. And when that happens then we are left vulnerable to being easily fooled into believing that we can interpret our supreme law anyway we want because it's a living Constitution.
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