September 11, 2005
On Constitutional Interpretation
In any society, power is limited, whether it be by the military, the citizens themselves, or the law. In a land like Iraq, he who controls the military and intelligence service has nearly unlimited power. In America, government power is restricted by the Constitution and the rule of law. Thus, whoever controls the Constitution, controls all.
-Brad Warbiany
Leading up to the American Revolution, our nation found itself in a precarious position. The English Constitution, which granted the rights of all English subjects in relation to the King and Parliament, was under attack. The English Constitution, unlike ours, was not a written document. It was a system of common law, judicial rulings, and traditions that formed a coherent system. For the most part, the English Constitution worked pretty well.
Yet the question of changing, interpreting, and amending that constitution is unclear. During the time of the Revolution, the English Parliament had become and absolute and arbitrary ruling body. Since there was no written constitution that superceded their power, they were able to write laws (specifically those applying to un-represented colonists) that eviscerated the rights and privileges English subjects should enjoy.
America was set up much differently. At the time, it was a completely new structure, never seen before in our world. Elsewhere, complete and total power had to be found in one, single, body. Parliament was a tricameral body (the King, the House of Lords, and the House of Commons), but taken together, there were no laws they could not impose. America, however, was a land of checks and balances, where the different groups had different roles and responsibilities. This structure was embodied in the Constitution.
In America, the federal government is solely tasked with issues of foreign policy, regulating interstate matters, and ensuring a base level of rights and privileges that cannot be infringed, even by the states. The states are semi-autonomous units, given a wide latitude of individual action and individual character. Within some basic guidelines, the states can do almost anything they want.
This entire structure is described in the Constitution. The overarching power in America is the Rule of Law. It is a blueprint, the first of its kind, that declares the terms of the social contract between individual and government. It is a simple, short, and powerful document, which can be understood by any adult with an eighth-grade education. And if it needs to change with changing times, there is an amendment process by which this can be accomplished.
So why have we messed it up so badly?
The founding fathers, in all their wisdom, wrote the Constitution to be a simple and easily understandable document. Therefore, there is no built-in description as to how it is intended to be interpreted. In fact, I would suggest that they never foresaw such a simple document needing any significant interpretation. The contract should be self-explanatory, but as with all contracts, lawyers are always trying to find loopholes.
The Constitution needs a process of review, by which laws and actions of government can be judged. This review must tell us whether or not the government is keeping within the bounds of the social contract. And to this day, there is nothing in the Constitution to grant this power to any body.
So, faced with this missing link in the Constitution, Chief Justice John Marshall in Marbury v. Madison (1803), declared the power of Judicial Review was the proper realm of the Supreme Court. There is nothing in the Constitution which grants this power, but it essentially gives the power to the Supreme Court to change the Constitution as it sees fit. At the time, this was a positive development, as it closed a loophole in the Constitution. Also, at that time the Supreme Court was much more likely to declare laws unconstitutional than they were to reinterpret the Constitution with expanded powers. This has changed, and the additional doctrine of stare decisis, where prior precedent is considered valid law, has contributed to Constitutional interpretation straying far from original intent.
The Constitution was written as a blueprint for our nation, to ensure that government would never have absolute or arbitrary power. It is the basic guideline by which all citizens can know what to expect from their government. It is the declaration of a social contract, in which one party is in violation. Watching jackbooted thugs confiscating firearms in Louisiana, watching as local governments seize private property for private use, or even tell you that your own home-grown ‘legal’ medical marijuana for private consumption is interstate commerce, government has become absolute and arbitrary.
This is why Supreme Court nominations have the import that they now do. We are at a stage where the Supreme Court has no limitation on its power to decide the future of our country. This can take the shape of liberal justices moving us closer and closer to socialist totalitarianism, or religious conservative justices moving us closer and closer to moral totalitarianism. Either way, too many Supreme Court justices have decided that the proper role of the Court is to bend the Constitution in the direction they feel is right, not to interpret the law in reference to objective Constitutionality.
The Supreme Court has assumed the role of determining Constitutionality of government action. But when they have strayed so far from the vision of the Founding Fathers, and are issuing rulings that are not anywhere close to reasonable Constitutional interpretation, is it time to find a better way?
Unfortunately, I fear that it will take much greater infringements on liberty than Kelo to wake up the American public to the point where action will occur. And whether that is before or after a potential point of Peak Liberty is still to be determined. What course of action can be taken? I think consistently getting the opportunity (and not squandering it) to appoint consistently originalist justices to the Court could accomplish the goal, but I think it leaves a great deal to chance.
What I think we need is a better way. Judicial Review is unconstitutional, but as long as the judiciary decides what is Constitutional, we rely on their own prudence to uphold the ideals espoused in our founding document. I think the proper attempt would be to amend the Constitution, if sustainable wording could be found. I do not see an issue with judicial review, but perhaps limiting stare decisis with respect to rulings on Constitutional law would reduce possible drift from the original intent. But I do not see the political will to open this can of worms, nor the public support to ensure it would sway my way. It’s still too early to pull the lid off of Pandora’s Box.
We’re stuck between a rock and a hard place. One can only hope that George W. Bush’s next nomination will be Janice Rogers Brown, and that he’ll have another opening during his tenure to replace one of the liberal justices with another originalist. In the meantime, the best we can do is to hope to explain and teach the fundamental philosophical underpinnings of originalism. Judicial expansion of Constitutional power has been working for a very long time, and it’s going to be a very difficult fight to reverse it.
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Hey, lookie there, Brad is quoting Brad!!!
Yes, I am glad that we have our own Constitution to keep our country on an even keel. Let’s hope it will be followed for a long time to come.
Brad – People really need to see how the originalist view of the Constitution protects *them*. (And, conversely, how the activist view of the Constitution hurts them.) Kelo was a start to this, and we need to build on that start.
John Roberts must be reading your blog. I heard him give responses almost verbatim from what you wrote here to some of the inane questions he had to answer today.
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