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By insisting that judges are responsible for fixing bad laws, rather than interpreting all laws with fairness and respect for standards of due process, progressives gather to themselves the power to impose their vision on the nation. …

Dianne Feinstein living constitutionI find this originalist judicial philosophy to be really troubling. In essence, it means the judges and courts should evaluate our constitutional rights and privileges as they were understood in 1789. However, to do so, would not only ignore the intent of the framers, that the Constitution would be a framework on which to build, but [would] severely limit the genius of what our Constitution upholds. I firmly believe the American Constitution is a living document, intended to evolve as our country evolves.

Thus Senator Dianne Feinstein (D-Calif.) expressed her opposition to Judge Neil Gorsuch’s judicial philosophy. In doing so, she also expressed the central untruths that have undermined constitutional government in the United States. As important, she highlighted the tyrannical (in the technical sense) ideology at the heart of progressive ideology.

“Originalism,” as Senator Feinstein somewhat vaguely noted during Judge Gorsuch’s confirmation hearing, is a judicial philosophy holding that judges should interpret the Constitution in accordance with the original, public meaning of its terms. Such interpretation entails determining how the Constitution’s drafters and, more important, its intended audience (the people) would have understood its specific language, and insisting that those understandings be upheld in succeeding legislation and judicial findings. Thus, for example, “cruel and unusual punishment,” forbidden by the Eighth Amendment to the Constitution, clearly would not encompass, and so the Amendment would not forbid, all forms of capital punishment. Trials for one’s life are mentioned elsewhere in the Constitution. Moreover, capital punishment was imposed with some regularity throughout the United States at the time of its adoption. Thus it is clear that the people would not reasonably expect that the ban on cruel and unusual punishment would extend to all forms of execution (though it would extend to torturous forms of execution then common in countries like France). These facts make clear the intention of the drafters of the Eighth Amendment, and the reasonable expectations of the people when they ratified that Amendment, which should control judges’ actions in reviewing contemporary legislation.

The other option, favored by many judges sharing Senator Feinstein’s “living” constitutionalism, is to declare that Americans have “evolved” beyond acceptance of capital punishment—to say, in essence, that capital punishment is now what it was not to the drafters, cruel and unusual. But who determines on what issues and in what way America has “evolved,” such that its Constitution must evolve in a corresponding manner? Judges, apparently. But on what basis? They could not be acting on the basis of the Constitution they are rereading in a manner opposed to that of the drafters. Instead, they would be acting on their own general moral sense, their take on the state of elite public opinion in their own time, or in some other fashion as (presumably enlightened) creators of new legal norms.

This is not judging. It is not adjudicating cases under the law. It is making law.

It has proven exceedingly difficult for judges and legal academics (let alone Senators) to justify such a role for judges on constitutional grounds. Our entire constitutional structure is based on the separation of judicial from legislative and executive powers, with each of these powers being explicitly “vested” in a particular branch. Only specific, narrow exceptions (the President’s veto power, for example) to this rule of separation are provided for in the Constitution. And those exceptions clearly are intended to reduce rather than increase the ability of any particular branch to gather within itself all the powers of governance.

Indeed, when I say that Senator Feinstein is supporting “tyranny” I mean this in the specific, technical sense laid down by the Framers of our Constitution. The philosopher Montesquieu, often cited and even more often relied upon by the Framers, pointed out that tyranny in its precise sense is the combination of the powers of lawmaking, execution, and adjudication within a single set of hands. Such power is beyond check, it enables one person or institution to pass oppressive laws, put them into effect, and uphold them in court. Under such conditions, there would be no means, then, of preventing, intervening with, or even softening such oppressive laws, and the people would become the playthings of those holding political power.

Why, then, would Senator Feinstein demand that judges usurp the power to legislate? The diplomatic answer is that she and her allies want the government to help us progress toward a more enlightened existence. The blunt answer is that they crave the power to change fundamentally our society without having to gain the widespread, consistent support of the people necessary to do so in accordance with our Constitution. But why would presumably freedom-loving Americans allow this to happen? Because they have been sold on the idea that only judges can do away with unjust laws.

As Senator Feinstein put it, “if we were to dogmatically adhere to originalist interpretations, then we would still have segregated schools and bans on interracial marriage, women wouldn’t be entitled to equal protection under the law, and government discrimination against LGBT Americans would be permitted.” The argument is simple, if not terribly compelling: because bad laws and policies existed at the time of the Constitution’s adoption (or after), anyone who would interpret the Constitution in accordance with the understanding and intentions of its drafters would uphold such bad practices. And this goes especially for judges, it seems, because it is somehow up to judges to do away with unjust laws.

The enemy, for Senator Feinstein and her allies, is not a particular judicial philosophy. Both Judges Robert Bork and now-Justice Clarence Thomas during their Supreme Court confirmation hearings were excoriated for failing to toe the “living constitution” line. Most famously, then-Senator Joe Biden attacked both for their very different judicial philosophies on intellectually inconsistent but politically single-minded grounds. Mr. Biden criticized Judge Bork for dismissing natural-law reasoning, and then criticized Justice Thomas for endorsing it, because each nominee refused to chain the Supreme Court to the political task of enacting and enforcing the progressive understanding of expansive individual rights. Whether the “right” concerns abortion, welfare benefits, or “freedom from” a Christian baker’s refusal to celebrate a same-sex marriage, progressives want judges to enforce and where necessary write laws demanding a specific code of conduct in keeping with their vision of justice and individual rights. If the Constitution’s plain language ignores or goes against such a vision, then it is up to judges to “reinterpret” it to support more “evolved” policies.

The central flaw in this reasoning—which any but the most committed progressive partisan should be able to recognize—is that it confuses judges with legislators. Legislators write many bad laws and many unjust ones. But not every unjust law is unconstitutional. When it comes to various forms of discrimination, for example, the original Constitution clearly allowed for laws enforcing them. Just as clearly, a series of laws and Constitutional Amendments have instituted a robust civil rights enforcement regime. Senator Feinstein wishes to emphasize the role courts have played in this process, ignoring their deeper, more destructive role in helping enshrine various forms of discrimination in infamous cases like Dred Scott v. Sandford and Plessy v. Ferguson.

Of course, judges should refuse to enforce laws if they conflict with the higher, more fundamental law of the Constitution, but they cannot rewrite the Constitution without taking on dangerous, tyrannical power. The Constitution is not, and cannot be, perfect. But then it, too, may be changed, provided one is willing and able to gain the widespread support necessary for an amendment. This is how republican government works. If we are to be ruled by laws, rather than the whims of our rulers, we must obey the laws we have until they can be changed—even if they are very bad—by the procedures laid out in the higher law of the Constitution. Any other approach sacrifices law and liberty to the whims of those who happen to wield power.

We have heard the “living” constitution argument many times before. It is the heart of the progressive program of action in changing American law and culture. Its centrality in that program stems from its utility. By insisting that judges are responsible for fixing bad laws, rather than interpreting all laws with fairness and respect for standards of due process, progressives gather to themselves the power to impose their vision on the nation. All laws, social practices, and even private actions that are deemed “unfair” may be struck down and even subject to legal sanction on the grounds that elite opinion of the moment requires it. After all, how is a Constitution to “live” except by “changing with the times” and what are “the times” but the current opinions of those with power and influence? If such opinions cannot gain sufficient support in the legislature, they must be imposed from the bench.

The strength of Senator Feinstein’s argument is the parade of horribles to which she can point. Again, there have been many bad laws in America—as there certainly will continue to be many bad laws into our future. The question is whether people like Senator Feinstein, to whom the people have granted the legitimate power to write new laws and eliminate old ones, will take responsibility for their actions, or whether they will continue demanding that judges spare them the trouble of drafting legislation, explaining its importance to other Senators and representatives, and making it into law.

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2 replies to this post
  1. As Christopher Dawson wrote in The Historic Reality of Christian Culture:

    “All the great civilizations of the ancient world believed in a transcendent divine order which manifested itself alike in the cosmic order-the law of heaven; in the moral order-the law of justice; and in religious ritual; and it was only in so far as society was coordinated with divine order by the sacred religious order of ritual and sacrifice that it had the right to exist and to be considered a civilized way of life. But today this ancient wisdom is forgotten. Civilization has cut adrift from its old moorings and is floating on a tide of change. Custom and tradition and law and authority have lost their old sacredness and moral prestige. They have all become the servants of public opinion and of the will of society. They have become humanized and secularized and at the same time unstable and fluid.”

    The religion of humanism cut off from the transcendent can only lead to the arbitrary will to power wherein the state is grasped at by those wishing to impose their own authority, and all, ironically, in the name of opposing authority, of course that authority which “regressives” do not wish to live by. They’d rather regress to our pagan ancestral ways.

  2. I quite appreciate Judge Gorsuch’s admonition to the Senators during his confirmation hearings that it was not HIS job to fix the Legislature’s bad laws, only to adjudicate in accordance with them. They really didn’t have a coherent comeback for that one.
    Alas, it seems no one, including or perhaps especially politicians, has the slightest concept of Rule Of Law, rather submitting to some form or another of Führerprinzip.

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