Brett Kavanaugh, constitutional Amendment, judicial humility, Neal Gorsuch, Originalism, The Constitution, the living Constitution, we the people
This, gentle readers, will be a brief article, because the topic is as simple as it is contentious: how the Constitution–and the law–must be interpreted.
This is one of the primary issues dividing our nation, and one that could have a role in leading to a second civil war. Democrat/Socialist/Communists see the courts in general, and the Supreme Court in particular, as super legislatures with all legislative power vested in from one to five–a Supreme Court majority–unelected, unaccountable federal judges. They want to confirm only D/S/C judges who will ignore the law and the Constitution, who think the Constitution a “living” document, to be interpreted–or ignored–to give them any policy they cannot obtain through the legitimate legislative process.
To this end, new “rights” are to be discovered hiding in emanations and penumbras, between the lines, under the ink, and out of thin air. And when no such rights can be tortured into existence, the Constitution and law are entirely ignored and what every D/S/C knows in their heart ought to be, because they’re morally and intellectually superior, is made to be. Powers expressly delegated to the executive are ignored and suppressed, as are rights reserved to the people. D/S/Cs want judges to be supreme judicial/legislative beings, but only so long at they decide cases the right–Left–way.
This is why they fought so hard against Justices Brett Kavanaugh and Neal Gorsuch. They belong to a school of legal thought known as Originalism. D/S/Cs hate that–and you, gentle readers. They hate you most of all.
Let us, however, take a moment to briefly explore Originalism, as Fox News reports:
In an exclusive interview, Supreme Court Justice Neil Gorsuch gave Fox News some insight into how he and his clerks handle the weight of public opinion while serving on the nation’s highest court.
Fox News host Shannon Bream had asked Gorsuch whether he let public perception influence his work.
‘I tell my law clerks I have two rules — only two rules — if you follow them, you’re going to be just fine,’ he said. ‘Rule number one: Don’t make it up — follow the law. Rule number two: when everybody else around you is yelling at you, asking you to make it up and condemning you for not making it up, refer to rule number one.’
What radicalism! Imagine that: following the law! Not making things up!? Madness! How can we progress if we have to play obey some silly Constitution and laws?
Gorsuch, an originalist, has embraced a judicial philosophy that limits Constitutional rights to those outlined during the nation’s founding and insists that additions to the document should come through the consent of the American people.
‘Originalism says the rights of the Constitution that were given in 1789 are the rights you enjoy today and they can never be taken — and if you want to add to them, we the people add to them,’ Gorsuch told Bream.
But wait a minute: we can add to rights?! We’re not stuck with those written in 1789? How might that be? Oh, right: amending the Constitution.
Left-leaning advocates have often pushed a judicial philosophy that supposes the founders couldn’t have foreseen circumstances that might alter the meaning of the text they initially wrote.
When Bream asked Gorsuch about that argument, he called it ‘baloney.’ ‘I think the Constitution is one of the greatest documents in all of human history and deserves our respect — and if you want to change it, don’t ask five people in Washington to change it for you,’ he said, referring to the slim majority needed for Supreme Court decisions.
Something I often tell my students is that times change, but people don’t. The Founders well understood human nature and the temptations of unchecked power, and they affirmed to Jane and Joe Average, Normal American the right to chart their own, collective and individual destinies, and in so doing, limited the power of government and the parasites that would steal those rights.
That’s also what D/S/Cs hate. That’s what they want to change. That’s what court packing schemes are all about. They want judges–their judges–to tell us what we’re allowed to think, say, own and do, and how much of our money–they think it’s really theirs–we’re allowed to keep. They know very well the Founders were right, they had their number centuries before D/S/Cs were born, because times change, but despots never do. They really hate that too.
CBN.com adds detail from their interview with Justice Gorsuch:
Gorsuch addressed the ‘living Constitution’ and clarified that having a dynamic meaning or a sense that the Constitution changes with time is illogical.
‘You know, the living Constitution is going to take your rights away and it’s going to add ones that aren’t there – we have a written Constitution. It’s about honoring the words the people chose to adopt. What are the first three words of the Constitution? It’s ‘We the people,’ not ‘We the states,’ not ‘We the nine old judges,’ he added.
But wasn’t Gorsuch–like Kavanaugh–going to single handedly destroy the republic? Wasn’t he going to take away everyone’s rights? Isn’t Roe v. Wade already overturned? How does “we the people,” and preserving constitutional liberties rather than ignoring them and making up law out of thin air comport with D/S/C hysteria? D/S/Cs hate that kind of judicial humility and honor, but they surely love humiliating normal Americans.
Originalism has regained its place at the table of constitutional interpretation, and textualism in the reading of statutes has triumphed. And neither one is going anywhere on my watch,’ Gorsuch proclaimed.
There, gentle readers, is one of the fundamental deciding issues of the 2020 election, which, if decided rightly, may just stave off unnecessary conflict. Maybe identifying which candidate and political party’s every solution to problems, real and nonexistent, involves taking away the money, prosperity, standard of living and liberty of normal Americans might help? Voting against them might help even more.
I’m sorry, Mike, did “we” just ignore the last, um, 230 years of American history? The country seems to have evolved just fine with the political pendulum swings of times with Dems and Times with Republicans just fine. I don’t understand your (and Conservatives in general) constant creating villains out of a segment of American society. The current divide might be all about the literal Constitution to Conservative Republicans (not me) but from my vantage point it’s a lot about Trump personally. Maybe you need to re-define who your “enemy” is perceiving who their enemy is.
the last 230 years of history has nothing to do with it. The constitution was ratified by the states composing this country when written. It is the owner’s manual and defining document of the USA. The constitution enumerates what powers and responsibilities the federal government has. Everything else is reserved for the states and the people. The document defines an amendment process should the situation change which process has been used successfully approximately 30 times in our history. It is not difficult to understand. There are just too many people, mostly on the left, who know they cannot achieve a successful amendment. Instead they screw with and game the system. This is what needs to stop.
Again… the Liberals.. the Left.. is the enemy… and all of a sudden, too. The last 230 years has nothing to do with it?? Are you suggesting that history rises and falls on what Trump blabs in a Tweet? Just what are you afraid of?
I’m saying the constitution is the owner’s manual of the country. The last 230 years does not change how the system works except through amendments. Anything else, such as the new deal or row vs wade is not part of the system and needs to be removed.
By that logic do when then assume that, per you, SCOTUS favoring the Second in the Heller decision, or any decision for that matter, needs to be removed?
Heller would not have been necessary if these idiots had read the constitution. How much brain power does it take to understand “shall not be infringed”?
That’s the easy part… what’s before that “shall not be infringed.” is the question. The issue in question is what won’t be infringed. I don’t agree with the Court… but I am a defender of what comes from them regardless as law of the land.
The ‘enemy’ is those who believe in relativism, specifically when used to manufacture ‘rights’ out of thin air (eg, Roe v. Wade; Obergefell v. Hodges) and a plethora of other extraordinary court decisions. Relativism when used in legal settings is known as legal positivism. This misuse of the law is an affront to civil society. Its practitioners as the ‘enemy’.
Too, those who create and use a bureaucracy to usurp the amendment process are nothing less than the enemies of the Republic.
It’s fine by me (and conservatives in general) that people have differing opinions, even wild opinions which I consider personally offensive. Yet when those opinions seek to divest me of my natural rights or to place other limits on how I conduct my life, I consider them as adversary to my claim to liberty and the pursuit of happiness. They become my enemy as far as they wish to foment their opposition to my inherent claim.
This did not begin under Trump. This began much earlier, beginning around the time of Everson v. Board of Education (1947) but especially since then.
Ahh.. now this is interesting, Mr. Rick. You feel there are people “out there”.. fellow Americans, who are engaging in some unified level of political subterfuge to take your God-given freedoms? I am curious what those personal freedoms are that you lost.. if you choose to elaborate.
Notice I did not say those inalienable rights have been completely extinguished. Yet they are weighed down and severely limited. Are you so inculcated to the burgeoning limitations that you are blind to them? Herein is a superb reason why knowledge of history is vital. For without that knowledge one might assume it has always ‘been this way’. History literally presents a timeline by which we may measure the encroachments set upon our rights.
We have a political party that wants to abandon the Constitution?? Which one would that be, Mike?
Mike McDaniel said:
Well, that would be the one that wants to eliminate the First and Second Amendments, eliminate the electoral college, pack the Supreme Court to better eliminate the Constitution, the one that is still trying to complete a coup against a lawfully elected president, you know, that one.
There’s that old fear again. Trump has done well.
Mike McDaniel said:
Not fear; recognition of reality: “The price of liberty is eternal vigilance.” Thomas Jefferson
Sorry in advance for the length of this rant. The idea that the “right judges” won’t interpret or read into a constitution in modern times is very pertinent. it’s not about defining or refining who enemies are.
There has been and will always be a group of people who wish to push their thoughts or ideologies onto others in society. Whether from the left or the right of the political spectrum, both are just as inherently evil in that attempt.
The very idea of a constitution is to provide an overarching group of rules to which the majority of a group of people can adhere while respecting the rights of minorities within the group. When judges of either political bent try to twist the rules to their sides benefit, they and those who want the changes are acting as enemies of the constitution and the country that formulated it.
Most successful constitutions have a way to change or amend the document. That is the best way to effect change and preserve the unifying principles behind the original document.
Judicial change or governmental change by fiat leads to disenchantment and frustration in the populace.
Case in point, the issue of same sex rights, especially marriage.
Using our Canadian Constitution as an example, as it is relatively young compared to the US document ( 1789 vs. 1980); our politicians negotiated for years to determine what rights and freedoms should be included in the original document. The majority of people as expressed through their representatives did not wish to include sexual orientation as a protected class.
The governing Liberal party chose to not include that in the document as it was a stumbling block to the passage of the constitution. But shortly after the acceptance of the constitution, they began to appoint judges to our supreme court who favoured inclusion of sexual orientation in the document, and low and behold, they soon
after ” read in” that right that the people had previously denied.
Soon after followed much derision about court made law instead of law created and adopted by the public and their representatives.
Sorry for the rambling, but I feel the US Constitution is a seminal root document of western democracy, similar in importance to Magna Carta in preserving our God given rights.
As such it should be afforded the respect of only being changed in appropriate ways not through the desires of unelected judges, beholden to no one except their cocktail party friends.
I understand what you are saying… and I would agree to your perceptions. One of the advantages of having a recent (1980) Constitution as Canada does is that Canadians could easily draw on those aspects or our own U.S. Constitution that cause such debates… and.. most important, the wording of the Canadian Constitution is using contemporary language, nuance, and terminologies, which tends to leave little need of long-winded interpretation and biased debate as a result of Old English usage (like our Second Amendment). In theory one might expect the Canadian Constitution as being a far more “improved” document on the whole. Yet the differences will be the result of those things which are the ethos of being Canadian.. social norms, mores, and unique symbiosis between English and French influence… and historical evolution of the country in general. No right or wrong to either.. just different wills of the people.
The other thing many fail to comprehend about the U.S. Constitution is that it was written/created/conceived in comparably much “simpler” times, with no established legal history to draw on, other than English law, with absolutely no idea of the effects of organized political parties and how that alone has grown to permeate through all three institutions and our culture. No way could the Founding Fathers have anticipated that. Hence their inclusion of making changes into the document.
The Founders were well studied upon Hammurabi, Greek and Roman law, as well as the English Magna Carta. Of course, God’s Holy word is the basis for much law found in the founding documents and the origins of our justice system.
The language in which the Bill of Rights is written is not so antiquated that it can not be understood. The 2nd Amendment, which you use as example, is well understood to it’s original meaning by one who understands clauses and participles. One hardly need be a scholar to acquire such knowledge. I dare say that the error lies in those who seek misunderstanding.
(There is the consideration that I’m all wet, that I presuppose malicious intent in those who do not understand. My most recent class in basic English composition was in the mid-1970s. If later generations are unable to grasp the meaning I should think it the instructor [or institutional bias] had failed the student. Yet, the student shall always lay claim to a lifetime of study providing they so choose.)
The remedy, other than the above mention of an understanding of the English language, is to develop a familiarity with the writings of those men who are otherwise known as the Founding Fathers. The presumption is that one truly wishes to know original intent, of which we know there will always be those others who seek their own interpretations to their own ends.
Of all nations, ours is the oldest Constitution currently in use exactly for the reason that it had so perfectly drawn from multiple sources; some as desirable, others as examples of what to avoid.
“Of all nations, ours is the oldest Constitution currently in use exactly for the reason that it had so perfectly drawn from multiple sources; some as desirable, others as examples of what to avoid.”
Agreed the Constitution is the oldest, but not so much for itself as for our belief in it. It is far from “perfect” nor is our application of it. But it’s closer to the things we value in our national ethos than anything else. I am willing to acknowledge and have faith in the Constitution that the institutions are in place for a reason and that at any time SCOTUS makes interpretive decisions as the final authority based on cases of law presented to it, that buck stops with them. To assign “blame” for allegedly “bad” SCOTUS decisions based on the individual political affiliations, or tendencies, of the justices is inevitable. To assign a Constitutional “blight” because one side sees SCOTUS decisions as arbitrary to political bias and contrary to what the Founding Fathers intended (as if anyone today fully comprehends what anyone was thinking back in 1789), is simply objecting to the Constitutional process not favoring their view.
Returning to the Second as an example of English interpretive style of the day… you obviously don’t know me and I do not know you.. therefore I can only respond for myself in that my personal interpretation of the Second has nothing in the least to do with some emotional personal bias or knee jerk. I like guns, I own guns. I believe in the right to do so. But the way it is written does not mean what some suggest it means simply using my own assessment of the grammar being used and the history of the times. I firmly believe that many of the more aggressive supporters of the Second are using their own emotion interpret what they want to see (personally I think it should be re-written to be clarified). In the end we have two sides of the issue. SCOTUS, which ever generation the justices are pulled from, are the nation’s arbiters in these cases and as an American I always defer to their decisions. I do not agree with the SCOTUS interpretation of the Second as it was written. But I believe in their role as being final.. as it relates to the case in which they are passing a judgement.
Point being… democracy itself is imperfect because it require humans to apply it’s precepts.
It was Christopher Columbus Langdell who applied the principals of Darwin’s theory to the law in general and the U.S. Constitution specifically. It is thus that we get the absurd and damaging concept of the Constitution as a ‘living document’.
Articles I, II, III of the Constitution lay the framework for the three branches of federal government, the Legislative, the Executive, and the Judicial respectively. The Judicial branch was intended to be the least important, the least powerful. In Federalist #78, A. Hamilton states, “…the Judiciary is beyond comparison the weakest of the three departments of power….” Hamilton had much more to say of the weakest of the three branches. I implore all to read Federalist #78.
In the words of Montesquieu, “Of the three above mentioned…the Judiciary is…next to nothing.” (The Spirit of Laws, Thomas 1802)
These unelected judges were, by the logic of the Founders, of no more importance than to hold which law(s) comported with the ‘Law of the Land’, and as overseer of the conductance of appellate courts. The judiciary was not to interpret the Constitution, not to find new meaning, and certainly not to annul the voice of the People. Yet the judicial has done all this as they have usurped an amazing number of powers.
How that happened is worthy of thick volumes. Simply, it was by a complacent legislature and an ignorant and disinterested people which allowed the judicial to become the monster it is today. We should barely consider the appointment of judges, our attention should be towards the election of our representatives. Yet, because the Constitution has been turned on its ear, we clamor over the appointment of judges and cast votes according to which candidate presents the best image (even the best hair, infamously said by some who voted for John Edwards in the 2004 presidential election), or which promises are the most agreeable.
Name the six institutions named in the U.S. Constitution. Rank their importance beginning with the most important to the least important. Here’s a clue, the 1st, and the highest, is named in the Preamble.
Yep.. “We the people…”. All 230 million separate opinions. Somewhere in there is your opinion, my opinion, etc. etc. Seems a tad more than the estimated 3 million at the time the Constitution was written, ya think?
It is more probable that there are few differing opinions than each person having truly their own. In fact, I say there are as few as two differing opinions. One is the ‘statist’, the other desires a minimalist government, wanting to be ‘left alone’. Of course that is the pragmatic view; there will be all sorts of opinions if one were to consider the arrangement of all the subjects great and small, yet we should not be so pedantic.
A very good example is how a few hundred words (the Constitution) details how to govern a nation, yet a thousand million words (and growing) are written to ‘govern’ seemingly every aspect of our lives. I trust you will comprehend how this, while not an opinion, per se, is an accurate example.
“Originalism says the rights of the Constitution that were given in 1789 are the rights you enjoy today and they can never be taken — and if you want to add to them, we the people add to them,” Gorsuch told Bream.
Assuming the quote is correct, I trust he is referring to rights created by the Constitution, and not inalienable rights, or that the use of “given” is not intended to be what it might otherwise imply. Otherwise, this is all upside down. Honestly, that does not sound like what Gorsuch would actually say, but it is possible he was speaking off the cuff and not thinking technically.
Also, considering the documents and debates from the founding era, I have to take issue with the thought that they were simple times, or even simpler times, at least from any political perspective, which is all the Constitution was intended to address, i.e., what is the limited federal government to be empowered to do and how is that government to be chosen, particularly vis-a-vis the states. I would not disagree, however, that the founders probably had greater hope than might have been warranted (even though it was not much) that simple minds would not prevail over time in undermining the Constitution. All too complex to discuss in blog posts.
I still remain baffled why the liberal states cannot see the benefit of moving away from centralized power; we have common ground on this. The Constitution did not prevent a state from having and enforcing laws banning guns, providing free abortions, banning hate speech of whatever category, or any number of other woke things. I would be more than glad to return to the more state-centric approach of the Constitution, and let NY and Cali go all commie if they want to; just leave the rest of us alone and stop trying to force one-size-fits-all federal solutions for problems that are not really federal problems, but problems of the states or problems reflecting state fears. You don’t want guns comin’ in from the states where all your nonwoke citizens will move, put up some checkpoints at the state border and impose hefty fines and imprisonment on violators while your remaining disarmed citizens listen to the state speak when not cleaning up crap from the streets. But leave the rest of the states to their own experiments on what their citizens might tolerate regarding attempts to limit inalienable rights. I don’t want NY and Cali out of the United States, I want them to stay in their place in balance with the rest of the states.
Mike McDaniel said:
And there is your lack of vision. They don’t seek balance and unity; they seek absolute power.
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Alan Reasin said:
I have always believed that the Constitution is a contract between the people and government. Thus it is no more a living document than my mortgage loan contract. What are the chances I can get away with lowing my payments by saying present interest rates have fallen or my financial status has changed.
I beg to differ in your definition of the Constitution being a “contract”. A legal contract benefits two (or more) sides, with certain conditions needing to be met, with the option of either of either side cancelling out, hence the reason to enter into contract. “Government”.. or the form of government… is not an entity unto itself that is entitled to benefit from merely existing. Government, especially our American government, is a collection of institutions (three) that exists at the pleasure and sole discretion of “We, the people..” through representation.
Government performs at our (the people’s) direction using the parameters set forth in the Constitution, that represents the will of the people… with the original design of the Constitution allowing for adapting to social changes to continue to serve the will of the people.
Mike McDaniel said:
Well, that’s the way it’s supposed to work. The point is that one of our primary political parties has abandoned the Constitution in practice, and would like to abandon it in fact.