October 26, 2009

Saving The Constitution From The Left

By: David Goetsch

American is more than just a piece of geography on a map. It is an idea. That idea was captured in stirring prose by Thomas Jefferson in the Declaration of Independence. The Constitution translates Jefferson’s eloquent words into more specific terms that make the idea of the United States a practical reality for Americans. Unfortunately, the Constitution is under attack and it is the very idea of what it means to be an American that hangs in the balance.

Those involved in the battle for the Constitution comprise two warring camps. One consists of those who believe in protecting the integrity and sovereignty of the Constitution. This camp is comprised of advocates of the concept known as originalism. The other camp consists of those who believe the Constitution should continually change to match the ever-changing socio-cultural trends in America. This camp is comprised of advocates of a concept known as the living Constitution—a concept that sounds reasonable until one examines what it really means.

Originalism

Originalism is a way of interpreting the Constitution that is informed by the original intent or meaning of its authors. It also views the Constitution as a sovereign document that, in turn, protects the sovereignty of the American people. Originalists fall into two categories: advocates of original intent and advocates of original meaning. Original intent and original meaning advocates both believe in a fixed authority when it comes to interpreting the Constitution, but they differ concerning what that authority is. Original intent advocates believe that what the drafters of the Constitution meant by their words when they wrote them should be the deciding authority in matters of interpretation. Original meaning advocates believe that the interpretative authority is what a reasonable person living at the time the Constitution was drafted would have thought the words meant.

Determining the intent of the founders or the meaning of their words requires people to do something very few Americans do any more: study the Constitution and other founding documents such as The Federalist Papers. The “Federalist” is a multi-volume work containing the complete record of the debates that occurred in the Constitutional Convention and the state ratification conventions. In these conventions supporters of ratification had to justify every line of the Constitution against the criticisms of astute anti-Federalists as well as others who were neither for nor against ratification. One of the reasons these crucial volumes are not taught today is that leftist professors don’t want their students to know the original intent of the framers of the Constitution. Knowledge of what the founders intended can be used by critical thinkers to refute the concept of the living Constitution.

Prominent advocates of originalism include Supreme Court Justices Antonin Scalia and Clarence Thomas. Constitutional scholar Robert Bork is also an originalist. The benefits of originalism include the following:

•Gives Constitutional authority to the people governed thus ensuring the sovereignty of the governed.

•Defers to the process of change established by the founders—the amendment process. The amendment process gives Americans a way to respond to socio-cultural changes while still protecting the Constitution—and in turn the American people—from the fickleness of societal trends.

•Protects Americans from the personal agendas, values, and biases of individual judges. It constrains judicial interpretation that is biased by personal preference.

•Provides stability and predictability—two foundational legal concepts—and protects against arbitrary decisions and interpretations by judges, legislators, and presidents trying to advance a political agenda or act on personal bias.

•Protects the very purpose of the Constitution—to keep judges from constantly reforming what America is and what it means to be an American.

•Provides common ground for interpreting the Constitution—the original intent or the original meaning of the founders. Other approaches offer no objective or honest means for arriving at a valid interpretation.

•Protects against the politicizing of the judicial branch (which was explicitly rejected by the framers but which is now a fact of life in America precisely because of the actions and decisions of living-Constitution advocates). Originalism guards against law being made by the judicial rather than the legislative branch by forcing judges to ask “What do the words say?” rather than “What would I like the words to say?”

•Protects the sovereignty of the Constitution by ensuring that it does not become subservient to international treaties or law.

Living Constitution

Advocates of a living Constitution believe it to be a dynamic document meant to be flexible enough to change with the times. Originalists agree that the Constitution must be able to accommodate change, but unlike living-Constitution advocates they believe that the amendment process is the appropriate vehicle for changing the Constitution. When interpreting the Constitution, a living Constitution advocate will be guided more by personal bias, international law, current socio-cultural trends, and international treaties than by the meaning or intent of the founders.

There are many advocates of the living Constitution concept, primarily because it is a convenient philosophy for those who wish to use the courts to advance their own political agendas. For example, one of the more prominent advocates of the living Constitution is former vice-president Al Gore. Problems with the living Constitution concept include the following:

•Encourages judicial activism that results in laws being made by judges rather than legislators. This is a direct violation of the Constitution sometimes referred to as legislating from the bench.

•Allows judges to make the law say what they want it to say rather than what it actually says and what the founders meant it to say.

•Allows judges to simply disregard Constitutional language they do not like or do not agree with.

•Allows international law and international treaties to take precedence over the Constitution, thereby undermining its sovereignty.

•Allows presidents, legislators, and judges to subvert the Constitution in the name of making it a “living” document.

One of the most important reasons for conservatives to reclaim control of the executive and legislative branches of government is that these branches control who sits on the Supreme Court as well as the various other appellate courts. These judges can adopt originalism as their way of interpreting the Constitution or they can adopt the living-Constitution concept. Federal judges who accept originalism are already in the minority. As a result, judges are legislating from the bench more than ever before. Judicial activism is becoming institutionalized in America, a fact that bodes poorly for freedom, liberty, and justice.

and Originalism is very different from Crank Literalism, very different.

federalist society website is a good resource, federalist.org


There are lots of things that the Founders clearly were against, however there were many things they did not agree on and the argument carried over into the running the govt., gradually decided as they figured how our system would work. Originalism accounts for that, Literalism that the "Constitution Party" or LP and others try to claim does not, and is a misrepresentation.

btw Sum, thanks for my Halloween Costume

Your welcome, I just need Pelosi Jocker, Reid Jocker, Frank Joker, Dodd Jocker, Raum Jocker, Axelrod Jocker, to round out the cast of the scariest people in the world.