A TALE OF TWO CONSTITUTIONS



The subject of constitutional interpretation
may seem like a topic best fitted
for an ivory-tower debate, but it actually
has a very real and dramatic impact
on daily life (as will be demonstrated shortly).
In recent years, two competing viewpoints have emerged.
Probably the first exposure most citizens had
to the two views came during
the 2000 presidential debates.
When asked what type of judges should
be placed on the bench, candidate Bush responded:
“I believe that the judges ought not
to take the place of the legislative
branch of government . . . and that
they ought to look at the Constitution as sacred.
. . . I don't believe in liberal,
activist judges; I believe in
strict constructionists.”
1 Candidate Gore countered,
“The Constitution ought to be interpreted
as a document that grows.”
2 Gore later stated,
“I believe the Constitution is
a living and breathing document.
. . . We have interpreted our founding charter
over the years, and found deeper meanings
in it in light of the subsequent experience
in American life.”
3 So, the two choices are
. . . follow original intent, or construct
a living constitution.

Proponents of a living constitution believe
that we should not be bound by
what dead white guys wrote two centuries ago
when slavery was legal, women could not vote,
and horses were the fastest means of transportation.
Instead, we should live under a constitution
that is alive and vibrant, reflecting today's
values and beliefs. Such rhetoric
makes a living constitution sound appealing,
but it is actually a complete misportrayal
of the difference between the two philosophies.
In reality, both accommodate an evolving society;
in fact, under the strict construction
(or originalist) viewpoint,
Article V of the Constitution requires
that the Constitution be a living document.
The real difference between the two approaches
is not whether the Constitution should evolve,
but rather how those changes should occur -
and who should make them.
Under the living constitution approach,
history and precedent are largely irrelevant;
instead, unelected judges create policy
to reflect modern needs through the constitution
they themselves write.

As explained
by Chief Justice Charles Evans Hughes:
We are under a constitution,
but the constitution is what the judges say it is.
4 Ironically, under this modern approach,
judicial policy-makers are
regularly out of step with modern society.
For example, although 80 percent of the nation
currently opposes flag desecration,
living constitution judges have ruled
that the people are wrong on this issue
and that the flag cannot be protected.
Similarly, 90 percent of citizens
in the federal Ninth Circuit supported
keeping “under God” in the Pledge of Allegiance,
but their living constitution judges
pronounced them wrong.
Equally striking is the number of recent occasions
in which living constitution judges
have overturned statewide votes
wherein the People clearly expressed their will
(e.g., striking down votes in New York and Washington
that banned physician-assisted suicides;
in Arkansas and Washington that enacted term limits;
in Missouri that rejected a tax increase; etc.).
Each of these popular votes would be valid
under original intent because in that approach,
the People — not unelected judges —
determine their policies and values.
And whenever the People want a change,
they do not rely on a judge to make it;
instead, they update their Constitution
to reflect their views —
as they have done on over two-dozen occasions.

Samuel Adams pointed out
the strength of this approach:
[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
[Article V] - has already undergone
such amendments in several parts of it
as from experience has been judged necessary.

5 (emphasis added)
This unique American guiding principle
made its appearance in the Declaration
of Independence as “the consent of the governed.”
The State constitutions penned after the Declaration
reiterated this precept — as, for example,
in Massachusetts in 1780:
All power residing originally in the people
and being derived from them, the several magistrates
and officers of government vested with authority —
whether Legislative, Executive, or Judicial —
are their substitutes and agents and are
at all times accountable to them.
6
The same axiom was then established
in the Constitution through the three-word phrase
that begins its text: “We The People.”
Today's living document proponents decry this approach as majoritarianism - the so-called “tyranny of the majority.”
Perhaps, but what is the alternative? Minoritarism?
That a small group should be able to annul
the will of the People and enforce its own desires
upon the masses?

Such an option is unacceptable
under original intent.
As explained by George Washington:
The fundamental principle of our Constitution
. . . enjoins [requires] that the will
of the majority shall prevail.
7
Thomas Jefferson agreed:
The will of the majority [is] the natural law
of every society [and] is
the only sure guardian of the rights of man.
Perhaps even this may sometimes err.
But its errors are honest, solitary and short-lived.
8
Does this original principle therefore mean
that minorities are to be disregarded or
trodden upon? Of course not.
As Jefferson further explained:
Though the will of the majority is in all cases
to prevail, that will to be rightful
must be reasonable — the minority possess
their equal rights which equal law must protect.
9
While the minority is not to prevail,
with its constitutional guarantee of “free speech,”
it does have the “equal right” to attempt
to persuade the majority to its point of view.
The minority does have equal rights,
but equal right is not the same as equal power;
the minority is never the equivalent
of the majority and should never
exercise control over it.
Living constitution judges, however,
view the majority as inherently wicked and
depraved — always seeking deliberately to violate
the rights of the minority with only judges
standing between the minority and total annihilation.
Therefore, under this anti-majoritarian view,
the greater the public support for a position,
the more likely a living constitution judge is
to strike it down.
Yet American history has proven
that the best protector of minority rights
is not the courts but rather the People.
For example, former slaves received
their constitutional rights not from the courts
but by the majority consent of non-slaves;
women were similarly accorded the constitutional right
to vote not by the courts but by the majority
approval of men; the constitutional rights accorded
to the poor by the abolition of the poll tax came
at the majority approval of those who were not poor;
and the constitutional right allowing
eighteen-year-olds to vote was given
by the majority approval of voters
not eighteen-years-old. Additionally,
all of the constitutional protections
for individuals and minorities established
in the original Bill of Rights (e.g., speech,
religion, petition, assembly, bearing of arms,
etc.) were also enacted by majority consent.

In other words,
all minority rights in the Constitution have
in all cases been established by majority consent.
In fact, the courts have a very poor record
of protecting minority rights. Although
living constitution proponents love to point
to the 1954 Brown v. Board of Education decision
that ended segregation as proof that the courts
protects minority rights, they conveniently forget
to tell the rest of the story. In 1875, Congress —
by majority vote — banned racial segregation,
but in 1882, the unelected Supreme Court
struck down that anti-segregation law; in 1896,
the Supreme Court reaffirmed its pro-segregation
position; but in 1954, the Court finally reversed
itself and struck down segregation - eighty years after
“We The People” had abolished segregation.

It is not surprising
that judges are fallible,
for as Jefferson pointed out:
Our judges are as honest as other men,
and not more so. They have — with others —
the same passions for party, for power,
and the privilege of their corps. . . .
And their power the more dangerous
as they are in office for life and not responsible —
as the other functionaries are —
to the elective control.
10
Certainly, the majority will sometimes err,
but as Jefferson observed, “its errors are honest,
solitary, and short-lived” and can be remedied
by “elective control.” However, the errors
created by judicial decisions are more severe
and long-lasting.
While living document enthusiasts disparage
strict constructionists as being narrow or
restrictive, Justice Antonin Scalia counters:
Don't think the originalist interpretation
constrains you. To the contrary, my [originalist]
Constitution is a very flexible Constitution.
You want a right to abortion?
Create it the way all rights are created
in a democracy: pass a law. The death penalty?
Pass a law. That's flexibility.
11
Scalia points out that it is just the opposite
with living constitution judges:
They want the whole country to do it their way,
from coast to coast. They want to drive one issue
after another off the stage of political debate.
12
In short, then, the living constitution
approach empowers an unaccountable elite
to make decisions on behalf of the People;
original intent empowers the People themselves.



[For more information on this topic
please see David Barton's book
Restraining Judicial Activism or his
audio presentation Restraining Judicial
Activism on cassette.]

http://www.wallbuilders.com/LIBissuesArticles.asp?id=86

interesting view and whether I agree or disagree is irrelevent. I just have one question.

By what power does the Supreme Court have to enforce its rulings?

and the answer, of course, is "none."

A person much wiser than me once said, "the public gets what it deserves, not what it demands."

If the people care so little about what happens to them, they deserve what they get.

thanks for the post.

Nice job. I wish it was that ez.

Exactly!!!

The power of the Supreme Court is great
but ultimately it is only a court of law.
The Supreme Court does not have the power
to initiate its own cases. Cases can
only come to it from a lower court
(except in the limited area of so-called
original jurisdiction). Therefore,
a justice cannot select a law or policy
with which he/she disagrees
and bring it to court for a ruling.
Once a decision has been made,
the Supreme Court does not have the ability
to enforce its rulings. This can only be done
by the Executive and Legislative branches
of government.

When segregation in southern schools
was declared unconstitutional in 1954,
nothing happened in the south.
It took until 1957 for the decision
to actually be enforced. Though the Supreme Court
had initiated a new approach in southern schools,
no-one in the south wanted to enforce it
and only the Federal government could do this
by the use of troops.

The Supreme Court needs to maintain
its position within America as
the most high judicial body within that country.
Therefore it does need to
be seen working as a partner
with the Legislative and Executive branches
as conflict between the three would
invariably diminish their standing
in the eyes of the public. It is rare
that the Court will totally overturn
an act passed by the Legislative.
The Court might seek to change parts
of it piecemeal and over a period of time
as this would appear to be less provocative
towards an elected body.

The ability of the Supreme Court to interpret
the Constitution is limited
as most parts of it are written in a very clear
and concise way which does not
leave them open to interpretation.

The greatest limitation to the Supreme Court
are the politicians themselves.
As the Court cannot enforce its decisions,
it relies on the Federal authorities to do this.
These politicians are supportive
of the Constitution and even Roosevelt
never thought about operating
without a Supreme Court
regardless of his clashes with it.
Politicians must be willing to listen
and abide by its decisions.

What could the Supreme Court do
if these politicians refused
to abide by its decisions ?

Because laws have to be just and fair the Supreme court does get to decide disputed laws. They are the highest court in this man land so they be the **** so to speak

As to the one constitution, it has been changed from it's original form on many occasions and should be changed regularly as the men it governs change.