Monday, September 19, 2005
A Living Constitution for a Dying Republic...
For its first 150 years (with a few exceptions), our Constitution stood as our Founders, and more importantly, "the people," intended—as is—in accordance with its original intent. ....
Prior to the reign of Franklin D. Roosevelt, the courts were still largely populated with originalists, who properly rendered legal interpretation based on construction of the Constitution's "original intent." However, FDR grossly exceeded the Constitutional limits upon the authority of his office and that of the legislature in his folly to end The Great Depression (the latter falling victim to World War II—not FDR's social and economic engineering). FDR's extra-constitutional exploits opened the door for the judiciary to follow the same path—to read into the Constitution what was necessary to make it conform to the demands of the prevailing political will.
In the decades that followed, the notion of a "Living Constitution," one subject to all manner of judicial interpretation, took hold in the federal courts. Judicial activists, those who legislate from the bench by issuing rulings based on their personal interpretation of the Constitution, or at the behest of likeminded special-interest constituencies, were nominated for the federal bench and confirmed in droves.
This degradation of law was codified by the Warren Court in Trop v. Dulles (1958). In that ruling, the High Court noted that the Constitution should comport with "evolving standards...that mark the progress of a maturing society." In other words, it had now become a fully pliable document. Indeed, the Constitution has become "a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please," as Thomas Jefferson warned, and the judiciary, in Jefferson's words, "the Despotic Branch".
Consequently, we now have a Constitution in exile, its having becoming little more than a straw man as the courts have become increasingly politicized. To wit, in recent decisions, judicial activists on the Supreme Court have cited "national consensus" and "international law" as factors in their decisions.
On Wednesday of this week U.S. District Judge Lawrence Karlton ruled that recitation of the Pledge of Allegiance in government schools constitutes a "coercive requirement to affirm God." That, of course, is factually inaccurate (AKA "a lie"). Students may refrain, on their own or at their parents' discretion, from repeating any or all words in the Pledge.
Karlton said he was bound by precedent of the Ninth Circuit Court of Appeals, though he could have ruled against and said he was "bound by the Constitution of these United States." ....
The Federalist Papers, as the definitive explication of our Constitution's original intent, clearly define original intent in regards to Constitutional interpretation. In Federalist No. 78 Alexander Hamilton writes, "[The Judicial Branch] may truly be said to have neither FORCE nor WILL, but merely judgment...liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments." In Federalist No. 81 Hamilton notes, "[T]here is not a syllable in the [Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution..."
George Washington advised, "The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution which at any time exists, 'till changed by an explicit and authentic act of the whole People is sacredly obligatory upon all."
Today, 218 years hence, Justice Antonin Scalia says of judicial activism, "As long as judges tinker with the Constitution to 'do what the people want,' instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically."
While the words "conservative" and "liberal" are ubiquitously used to describe Republicans and Democrats respectively, these words properly should describe whether one advocates for the conservation of our Constitution, as originally intended, or its liberal interpretation by judicial activists. Does one want to conserve Constitutional limits on the central government, or liberate those limits?
Prior to the reign of Franklin D. Roosevelt, the courts were still largely populated with originalists, who properly rendered legal interpretation based on construction of the Constitution's "original intent." However, FDR grossly exceeded the Constitutional limits upon the authority of his office and that of the legislature in his folly to end The Great Depression (the latter falling victim to World War II—not FDR's social and economic engineering). FDR's extra-constitutional exploits opened the door for the judiciary to follow the same path—to read into the Constitution what was necessary to make it conform to the demands of the prevailing political will.
In the decades that followed, the notion of a "Living Constitution," one subject to all manner of judicial interpretation, took hold in the federal courts. Judicial activists, those who legislate from the bench by issuing rulings based on their personal interpretation of the Constitution, or at the behest of likeminded special-interest constituencies, were nominated for the federal bench and confirmed in droves.
This degradation of law was codified by the Warren Court in Trop v. Dulles (1958). In that ruling, the High Court noted that the Constitution should comport with "evolving standards...that mark the progress of a maturing society." In other words, it had now become a fully pliable document. Indeed, the Constitution has become "a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please," as Thomas Jefferson warned, and the judiciary, in Jefferson's words, "the Despotic Branch".
Consequently, we now have a Constitution in exile, its having becoming little more than a straw man as the courts have become increasingly politicized. To wit, in recent decisions, judicial activists on the Supreme Court have cited "national consensus" and "international law" as factors in their decisions.
On Wednesday of this week U.S. District Judge Lawrence Karlton ruled that recitation of the Pledge of Allegiance in government schools constitutes a "coercive requirement to affirm God." That, of course, is factually inaccurate (AKA "a lie"). Students may refrain, on their own or at their parents' discretion, from repeating any or all words in the Pledge.
Karlton said he was bound by precedent of the Ninth Circuit Court of Appeals, though he could have ruled against and said he was "bound by the Constitution of these United States." ....
The Federalist Papers, as the definitive explication of our Constitution's original intent, clearly define original intent in regards to Constitutional interpretation. In Federalist No. 78 Alexander Hamilton writes, "[The Judicial Branch] may truly be said to have neither FORCE nor WILL, but merely judgment...liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments." In Federalist No. 81 Hamilton notes, "[T]here is not a syllable in the [Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution..."
George Washington advised, "The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution which at any time exists, 'till changed by an explicit and authentic act of the whole People is sacredly obligatory upon all."
Today, 218 years hence, Justice Antonin Scalia says of judicial activism, "As long as judges tinker with the Constitution to 'do what the people want,' instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically."
While the words "conservative" and "liberal" are ubiquitously used to describe Republicans and Democrats respectively, these words properly should describe whether one advocates for the conservation of our Constitution, as originally intended, or its liberal interpretation by judicial activists. Does one want to conserve Constitutional limits on the central government, or liberate those limits?
