Constitution, originalism and judicial activism – Sutherland Soapbox, 9/30/14

We_The_PeopleThis post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations.

A couple weeks ago, Utah and the country celebrated Constitution Day. September 17 was designated to commemorate the signing of the Constitution by the delegates to the Philadelphia Convention in 1787.

The day is well chosen because the genius of a written constitution is as much in the fact that it’s written as in what it says. A government constrained by an accessible set of guidelines stands a real chance of actually being limited. The fact of its being written allows conscientious citizens and officers of government to return to the document to ensure that they are keeping faith with their foundational charter. It allows critics a standard by which to measure proposed actions and policies. If the Constitution is taken seriously it allows for what John Adams called, in the Massachusetts Constitution of 1780, “a government of laws and not of men.” This way of interpreting the Constitution is widely known as “originalism,” and is the view supported by conservative Supreme Court justices such as Antonin Scalia and Clarence Thomas.

The alternative is to allow a powerful individual or group of people to govern with no restraint but the bounds of their own wills. Unfortunately, this can occur even with a written constitution if the terms are treated not as expressions of objective standards that can be discerned from the original meaning of the words, but as empty vessels for government actors to pour their own preferred meanings into. This view is known as the “living Constitution,” which is often tied to the practice of judicial activism. Many view the Supreme Court’s left-leaning judges in this light.

When judges engage in judicial activism, they are essentially creating new law and altering the meaning of the Constitution. This is not the proper role for judges. If a change seems to be needed, the Constitution itself provides the means for making it — not by creative interpretation but by a formal amendment process, difficult enough to require deliberation and consensus but not so difficult as to create undue barriers to needed adjustment.

The even greater genius of the United States’ written constitution is that it is more concerned with structural matters than in asserting nebulous ideals for government officials to run with. The U.S. Constitution is dominated not by policy prohibitions but by structures for decision-making. Nearly the entire 1787 document lays out the responsibilities of the branches of government including crucial limitations on their powers. The Constitution does tell us how we can make decisions that affect our lives, not what all the right decisions will be.

With a few exceptions, the things we think of as constitutional rights are contained in the amendments. Even these are typically phrased in negative form, as in: the government may not make laws abridging free speech or the free exercise of religion. The few affirmative rights (such as the right to a trial by jury or to a speedy trial) concern procedural matters and protect individuals by ensuring fair processes for resolving disputes.

The weakness of a written constitution, of course, is that it is only a paper protection unless backed by real fidelity to the document on the part of those who govern pursuant to its authority. If government officials believe their role transcends the bounds of the Constitution, as judges and political officials seem increasingly to do, the Constitution will be an ineffective restraint.

One obvious example comes from the many recent same-sex marriage decisions by federal judges. The crux of these opinions is the novel claim that the Constitution has, since 1868, contained an unwritten “fundamental right” to same-sex marriage. These judges try to disguise the radicalness of that claim by saying they are only applying the right to marry that has been previously recognized by the Supreme Court. That, of course, is an implausible claim, given that no state had redefined marriage to include same-sex couples until 2004, long after the court’s latest right-to-marry case.

With no real fidelity to the Constitution, judicial activism is a formidable tool to change law. Even so, the Constitution is a forceful document whose terms can still be consulted and which can still provide a powerful, if silent, rebuke to those hostile to its limits. Some will always be resentful that their ideologies are not facilitated by the Constitution and will attempt to insert these through extra-constitutional means, but the text remains a standard for those who still value the most fundamental Constitutional right — the right of self-determination.

For Sutherland Institute, I’m Dave Buer. Thanks for listening.

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