Jewish World Review Sept. 15, 2005 / 11 Elul,
Whose constitution is it?
A recent headline on the editorial page in the Wall Street
Journal read: "John Roberts Deserves a Dignified Hearing." That misstates
It is not for the sake of this particular nominee to the Supreme
Court that Senate confirmation hearings need to be dignified, but for the
sake of getting future nominees of the highest caliber, some of whom might
otherwise decline to subject themselves to the nationally televised Roman
circus and mud-slinging contest that these hearings have too often become.
There needs to be not only some dignity in the confirmation
process but also some rationality in discussing legal issues.
With all the confusing controversies about judges and how they
interpret the Constitution of the United States, we need to go back to
square one and ask: Why do we pay attention to the Constitution in the first
There has been much hand-wringing about how or whether we can
tell what the "original intent" was among those who wrote the Constitution.
But the moral and legal bases for the authority of the Constitution do not
rest with those who wrote it. The moral and legal authority of the
Constitution comes from those who ratified it "we the people" not
those who wrote it.
The writers of the Constitution themselves understood this.
That is why some of these writers also wrote "The Federalist
Papers" to explain to people across the country why they should ratify the
Not only did that generation ratify the Constitution, succeeding
generations have accepted the Constitution, with whatever amendments they
found necessary to add, for more than two centuries. It is the American
people who have made the Constitution the law of the land.
Once we understand that, we can see through the silliness of all
the learned hand-wringing about what the writers of the Constitution might
possibly have meant when they wrote it. What matters is what the people
understood those words to mean when they ratified it and amended it. They
didn't vote on what was in the back of somebody else's mind.
Much of the Constitution is remarkably simple and
straightforward certainly as compared to the convoluted reasoning of
judges and law professors discussing what is called "Constitutional law,"
much of which has no basis in that document.
Although some seem to think that abortion is the be-all and
end-all question about a judicial nominee, the real question is whether that
nominee will follow the law or succumb to the lure of "a living
constitution," "evolving standards" and other lofty words meaning judicial
power to reshape the law to suit their own personal preferences.
People who talk about a need for "change" in the law are off on
a tangent, if not cynically confusing the issue. Nobody denies the need for
change. The Constitution itself provides a process for its own amendment.
The real question is who should make those changes "we the
people" through elected representatives or unelected judges?
Those who think that judges need to update the law have claimed
that it is hard to amend the Constitution. But what is the evidence for
that? That it hasn't been done very often?
People don't often put on one red shoe and one green shoe. But
that doesn't mean that it is hard to do. It just means that they don't want
to do it.
To show that it is hard to amend the Constitution, you would
first have to show that the public wants it amended more often but somehow
just can't seem to get the job done.
There are 27 amendments to the Constitution, which is to say 17
have been added since the original ten in the Bill of Rights. The 13th,
14th, and 15th Amendments were all ratified within 5 years of one another.
The 16th and 17th were ratified the same year.
There is far less evidence that the public is dying to amend the
Constitution, and just can't do it, than there is that they resent judges
amending it by "interpretation."
The fact that judges feel a need to deny doing this suggests the
same thing. The time is long overdue to stop repeating shopworn sophistries
in defense of lawless judges.
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