Republican politicians, Fox News and various conservative think tanks blather on about “activist” liberal Supreme Court justices who, according to them, “create their own law.” On the other hand, these folks claim that conservative justices faithfully carry out the exact wishes of the wise men who wrote the Constitution.
But these claims are not only not true, they are nonsense.
All judges bring their own booze to the party.
According to Justice Antonin Scalia, “freedom of speech,” “equal protection of the laws,” “unreasonable searches and seizures” and “free exercise of religion” were carved in clear, unambiguous stone to be forever universally defined and understood. But there were differences of interpretation in 1789, just like there are differences in 2010. Scalia’s grasp of “freedom” or “equal” or “unreasonable” might be at some distance from that of Tom Jefferson – who sharply differed from John Adams – who, in turn, argued with everybody else.
The Constitution was written by men whose grandparents had known the burning of witches, and whose fathers had been accustomed to seeing moral miscreants placed in stocks in the town square. How could such terms as “unreasonable” or “cruel and unusual” fail to develop different shades of interpretation by generations that would carve eight-lane highways through cities of millions, watch flying machines be used as suicide bombs to kill thousands of people, and suffer loud cell phones in mixed-sex college dormitories?
How would women governors – or even female voters – be viewed by the 18th-century burghers, who forbade the fairer sex to congregate in public places or to own property independent of their husbands? How would slave-holding Virginians feel about a black president? Ask the Mormons about “free exercise of a religion” when, only a century later, they were denied multiple wives. Consider the recent ruling that eminent domain includes the taking of your house for a shopping center. Consider the ruling just this year that corporations are persons with the same free speech rights as individuals. Whatever one thinks of these decisions, pro or con, it should be apparent that the conservative judges who made them were hardly “factual” or “disinterested.”
One of the most egregious decisions in U.S. history was when five conservative justices ruled the voting recount in Florida in 2000 must be set aside in order to secure the election of George W. Bush. These “originalist” justices found their rationale in the “equal protection” clause of the Constitution – something comparable to deciding that the interstate commerce clause means that Maine can’t serve spicy enchiladas because Texas is closer to Mexico where they are made.
“Original text” judges, such as Scalia, who are offended by Roe versus Wade because the word “privacy” is not stated in the Constitution, conveniently ignore Amendment 9, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
Liberal judges have tended to protect racial, religious and political minorities, which fits easily with the outlook of many of the founders, e.g., Franklin or Jefferson – men to whom the very essence of government was the protection of dissent. To say that such interpretation is “creating new law” is balderdash. As James Madison observed, “the real power lies in the majority of the community, and the invasion of private rights is to be feared.”
For too long, the so-called “original text” twaddle has set the terms of this debate. It’s time that Americans should see judicial decision making for what it really is: the personal training, experience, personality and beliefs of the judge (who is, after all, a human being) rendering the determination.
Applying 21st-century problems to 18th-century text requires careful attention to the wording, respect for precedent, concern for goals of the authors and – fully as important – considerations of modern life and reality. This does not mean judges are free to make up the law as they go along, but it does mean that constitutional law is not a mechanical exercise; it is a product of the judges themselves.
If the word “gay” can change meaning completely in only one generation, the words “cruel” or “unusual” are likely to take on new shades in 20 generations.
Rodney Quinn, a former Maine secretary of state, lives in Gorham. He can be reached at rquinn@maine.rr.com.
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