Wednesday, February 17, 2016

The notion of a "living Constitution should be dead

I realize I may be losing audience members with yet another post on Justice Scalia and his philosophy of Originalism, but I feel it is important.  The idea that the Constitution should be interpreted as written, not read to have it say things it clearly does not, was once the dominant legal theory.  This theory was Originalism before it had a name.  It just was the way it was done.  Then along came the notion of a "living Constitution," arising because Leftists could not get enough people to agree with them to amend the Constitution as the Constitution permits.  If they couldn't amend it in the legitimate way, they would amend it by "interpretations" with each such interpretation building on another, until we get the Obergefell ruling, which is unmoored from any reasonable interpretation of the Constitution, and instead depends on a series of precedents, many of which were questionable to start with.

Lawrence Meyers, writing at explains this very will in How Liberal Philosophy Politicizes the Supreme Court.
When it comes to the nomination and confirmation of Supreme Court justices, there is only one type of judge that should ever be considered: an originalist. The late Justice Scalia said it best in March of 2014, now revived in a meme making its way around Facebook: "The Constitution is not a living organism. It's a legal document, and it says what it says and doesn't say what it doesn't say."
Precisely. The idea that the Founders left something out implies a bunch of air headed stoners sitting around a table and as they say, "throwing stuff against the wall to see what would stick." That theory is the "living Constitution." Oh, they dress it up with high sounding words, but in private the believers in a living Constitution talk about "old dead white men," and that the Founders couldn't imagine this or that. Hogwash! In truth, if something was left out of the Constitution, you had better believe it was deliberate, and if something was included, you had better believe it was important. These were men of great education and erudition, who had studied the classics, the Bible, and history. Contrary the the arrogance of today's jurists, people are no smarter today than the were, and most are less educated.
Scalia also said, “You think there ought to be a right to abortion? No problem. The Constitution says nothing about it. Create it the way most rights are created in a democratic society. Pass a law. And that law, unlike a Constitutional right to abortion created by a court can compromise.”
Again, precisely. It should always have been left up to the States. At the time of Roe v Wade there were already 17 States with some sort of abortion allowed in certain circumstances. There was no reason of necessity for a nation wide one size fits all standard.  The court sought to settle the matter once and for all for all 300 million of us, but that has not been the case.  The pro-life are still as staunch in their beliefs as they were then.  The name of the United States has been soiled with the stain of executing our innocent children.  Most of all, we have trampled on yet another Constitutional principle.  We can not deprive someone of life without due process, and yet we allow innocent children to be executed for the convenience of the mother on the mother's say so.  Should not these innocent babies have their day in court?
The late Justice William Rehnquist, in “The Notion of A Living Constitution”, wrote, “A mere change in public opinion since the adoption of the Constitution, unaccompanied by a constitutional amendment, should not change the meaning of the Constitution. A merely temporary majoritarian groundswell should not abrogate some individual liberty truly protected by the Constitution.”
Rehnquist warned of judges overstepping the role that the Constitution set out for them, writing, “[What if] Judges then are no longer the keepers of the covenant; [but] instead they are a small group of fortunately situated people with a roving commission to second-guess Congress, state legislatures, and state and federal administrative officers concerning what is best for the country?”
When a Federal Judge can overturn the votes of 39 million people, as one did in the case of California Proposition 8, it shows in high definition reality what liberal philosophy has gotten us. One Judge's vote outweighs 39 million. The fact that the proposition was supported by 70% of blacks makes it also, by Leftist standards, highly racists. Yet that doesn't seem to matter.Agenda uber alles. We need to get back to Originalism, even if we have to impeach half the Federal Judiciary to do it.  The "living Constitution" has been shown over and over to be folly.  And yet the Left clings to it, because, like a bunch of children, they want what they want and the want it now, everyone else be damned.  There is a way to get what they want, but they are too impatient to go that route.  And so the Supreme Court will remain a political football.  The "living Constitution" is should be dead.

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