Thursday, January 27, 2011

James Madison On Originalism & Judicial Activism

Doug Ross has a very good post today highlighting the differences between originalism - the proper role of judges - and those who embrace the "living constitution" theory. I've also posted on this topic in The Supreme Court: Originalism, Activism & America's Future:

There are two broad schools of Constitutional interpretation today – originalism and the "living constitution" theory. The latter is pure judicial activism dressed in a bare patina of Constitutional justification. . . .

Originalists attempt to interpret the Constitution by determining what the people who drafted it and voted for it understood it to mean at the time. An intellectually honest originalist does not announce new policy, he or she interprets history and precedent. That is a bit oversimplified - originalism is certainly not always that clean and can become muddled as precedent builds (and see the discussion here). But because there is always a strong bias to stay limited to what the Constitution says and what the drafters meant, it provides a carefully circumscribed role for unelected judges, thus paying the maximum deference to democracy.

When a Court stops interpreting the meaning of the Constitution and starts to impose its own policy views under the color of a "living constitution," it transforms into a Politburo legislating by fiat. Judicial activists and the left who champions them are the people who see an activist Court as a way around democracy and an irreplaceable tool to remake society. . . .

Doug makes many good points in his post, and I urge you to read it. Most notable in his post was this warning from one of our founding fathers, James Madison:

Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.

Truer words were never spoken.

The Constitution contains not one, but two methods by which we, the people, can amend the Constitution. Neither of those methods involve unelected judges deciding to amend our founding document per their whim. Left to their own devices, the Supreme Court has made radical changes to the very fabric of our nation over the past half century. The Supreme Court, unencumbered with any requirement to adhere to the intent of our founder, has been and remains the single greatest threat to the viability of our nation. The solution to this problem is simple, a law - or a Constitutional Amendment - limiting the discretion of judges deciding Constitutional questions to the original intent of the drafters and those who voted to approve our Constitution. That this was not included in Article III of the Constitution was a rare lack of foresight by the drafters of our Constitution.


OBloodyHell said...

> Most notable in his post was this warning from one of our founding fathers, James Madison

Ah, GW, I'd point out that he's much more than "just" a Founding Father in this context, weighty though that moniker is...

He's the guy who wrote the thing.

OBloodyHell said...

> That this was not included in Article III of the Constitution was a rare lack of foresight by the drafters of our Constitution.

I think their biggest lack of foresight was not to provide an explicit "end date" for slavery.

Given the fact that Congress has already done something they had no Constitutional right to do -- delegate their authority to make laws -- it wouldn't have made any difference to the liberals who have been perverting the reins of power for the last century and more.

Any of the umpty-ump offices of the government can place a "regulation" into the Federal Register -- after 90 days, if there is no explicit rejection of it, it becomes defacto law... so of course what happens is that they bury such in the hundreds of thousands of pages of the FR, then do nothing whatsoever to call attention to it for 90 days. After that, it becomes much more difficult to tear it back out of the CoFR.

There are watchdogs who attempt to police this stuff, but the true fact is that there's nothing whatsoever in the Constitution which allows Congress to delegate its power to create law AT ALL. But they've done it and the SCotUS hasn't said "boo".