Civil Liberties: Better Protected by Judges Or Druids?
“Don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.” (Abraham Lincoln)
Every time a court rules on constitutional issues the “press” makes sure everyone knows which president appointed the judge or judges? If it’s a right of center media organization who disagrees with the decision, they’ll disdainfully point out the judge or judges were appointed by Obama or Clinton. If it’s a left of center organization who disagrees with the decision, they’ll disdainfully point out they were appointed by Trump or Bush. The implication being that the judge or judges ruled the way they did because of their political beliefs.
This is true to an extent but grossly simplistic.
Broadly speaking, there are two theories of constitutional interpretation. The first is “Originalism.” Yes, I know there are many subsets that exist under this term ranging from original intent to textualism. However, over the years this term has come to define interpreting the Constitution by applying its text to modern society. If there is textual ambiguity, then the court looks to how the word or phrase was defined at or near the time the Constitution was adopted and the laws that were in force during that period. Under this theory, the courts apply the Constitution as written to a changing society and leaves expanding or contracting the scope of the Constitution to Congress and the states.
The strength of Originalism is that it guarantees that everyone enjoys the rights protected by the Constitution in a changing society free of political and judicial interference. If society changes to the extent that people believe the Constitution should be changed, then it’s the responsibility of Congress and the states to do so in accordance with Article V of the Constitution. The weakness of this theory is that changes to the Constitution are difficult and slow.
Most conservatives, and I believe libertarians, support this school of constitutional interpretation. Therefore, it is unsurprising that Republican presidents appoint judges who are Originalists. But it does not mean that an Originalist judge will rule in favor of a conservative cause, or against a liberal one just because they were appointed by Trump or Bush.
Second, is the “Living Constitution” theory of constitutional interpretation. Under this theory the Constitution is viewed as a “living document” that changes as society advances. It’s up to the courts to determine what changes society has undergone and interpret the Constitution in accordance with those changes – even if the ruling conflicts with the text of the Constitution. The strength of this theory is that the Constitution can be judicially changed quickly (relatively speaking) as society changes. Its weakness is that it allows the courts in general, and the Supreme Court in particular, to judicially amend the Constitution based on the Justices’ perception of how American society has changed.
This method of interpretation is supported largely by those on the left, and therefore it is not surprising that Democrats will appoint judges who follow the Living Constitution theory of interpretation. Again, it does not mean that a judge who follows the Living Constitution theory will rule in favor of a liberal cause, or against a conservative one just because they were appointed by Obama or Biden.
Where do I stand? I’m an Originalist as practiced by Justices Scalia and Thomas for a couple of reasons.
First, to follow the Living Constitution theory you must believe you can discern how a multi-faceted society, such as America, has “evolved,” which is narcissistic at best. Second, to substitute your judgement for that of the intellectual giants who drafted the Constitution and those who fleshed it out over 200 years of argument and debate is beyond narcissistic and borders on the mystical.
Finally, and most importantly, placing the scope of our liberties in the hands of nine people in black robes with no boundaries scares the hell out of me. History shows that the Court has caused untold damage when it ignored the text of the Constitution and instead ruled based on what it believed was necessary for the Constitution to meet the needs of society. A few examples:
- Dred Scott v. Sandford, 60 U.S. 393 (1856) held that Blacks, whether free or slave, could not be American citizens, ignored the Missouri Compromise and overturned laws that would free slaves. This decision was not based on any text of the Constitution, but on what the Court thought the text should be. This monstrosity lasted until overturned by the 14th Amendment12 years later.
- Plessy v. Ferguson, 163 U.S. 537 (1896) which ignored the 14th Amendment to implement the popular “separate but equal” doctrine of racial discrimination which trampled on the fundamental rights of American citizens for the non-crime of being Black.
- Buck v. Bell, 274 U.S. 200 (1927) upheld forced sterilization of the intellectually disabled, stating “society can prevent those who are manifestly unfit from continuing their kind…three generations of imbeciles are enough.” To arrive at this decision the Court had to ignore the 4th and 5th Amendments and rule based on what they believed was best for society.
- Korematsu v. United States, 323 U.S. 214 (1944) ignored every civil liberty protected by the Bill of Rights. Why? Because it was popular among many, including FDR, to round up Japanese-Americans and send them to what can only be described as prison camps. Violated every liberty protected by the Bill of Rights except the 3rd Amendment’s prohibition on quartering troops in private residences.
- Roe v. Wade, 410 U.S. 113 (1973) regardless of your views on abortion, this ruling was firmly grounded on nothing in the Constitution and usurped states’ rights under the 10th In the name of interpreting the Constitution as society evolved it sent this country into a social upheaval that continues to this day. Even Justice Ginsburg, a fierce advocate of abortion rights, thought this case was wrongly decided.
Unsurprisingly, the Court has been exceptionally poor at determining what policies are best for American society. And when they do attempt to employ their crystal ball, they often, if not always pick a crystal ball that doesn’t work resulting in significant social upheaval and harm to Americans.
Conversely, when the courts refrain from interpreting the Constitution as a “Living” document, they arrive at decisions that uphold our constitutionally protected rights. The reason? Simple – they constrain themselves to the text of the Constitution instead of the expansive boundaries of their imagination.
In essence, the “Living Constitution” theory of interpretation cedes authority to nine Justices on the Supreme Court to determine what is best for Americans and American society. Under the Living Constitution theory, I don’t see the difference between our courts and the Celtic Druids – they both base their authority on claiming they have mythical powers to divine knowledge the rest of society does not. The former did not, and later do not.