The Constitution, The Court, and The Country: Part One

Part one of a three part series analyzing why we got here, how we got here, what happens next, and what can be done to heal the nation.

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Puck

What if feels like to live in America today. Chaos.

Lord Toussaint, Chief Political Correspondent and Editor

We’ve all heard it before, we remember siting in civics, mindlessly engraining it in our minds without question:

“The judicial interprets the law.”

Sounds simple enough.

Right?

Maybe that’s why none of us wondered what that really means;

Never questioned it.

After all, laws are laws; words are words.

Right?

How could there be controversy around that; words?

Is it even possible to see the exact same thing completely differently?

Is it even merited?

 

We all know the answer to that question.

If we didn’t, it’s time we grew up…

 

Welcome to America.

The land where, “error of opinion may be tolerated where reason is left free to combat it.”

The land where, “every difference of opinion is not a difference of principle.”

 

Or so it was…

 

If you haven’t figured it out yet, there is A LOT of controversy.

Especially now, following the death of Justice Ruth Bader Ginsburg and the presumed confirmation of Judge Amy Coney Barrott to fill her seat.

We’ve all heard about their differences, the horror of Democracts in the face of Republican hypocrisy, and how this appointment may very well change the fabric of American society.

But what actually makes the two so fundamentally different?

What can this struggle tell us about America today?

In answering the first question, let it first be admitted that almost no being, or side is completely right about anything. Often, the answers lie not within black or white, but rather in the grey. This truth holds in the context of judicial interpretation.

There are two major forms of judicial interpretation, constructionism, also known as originalism, often associated with conservatism, and evolutionism, often associated with “liberalism.” As their names may suggest, theses philosophies are fundamentally at odds with one another, as are many of the results which they produce.

The very ideological sores which plague our executive and legislative politics infiltrated our judiciary at the former and latter’s whims.

Justice Ginsburg was an evolutionist.

Judge Barrett is an originalist.

As Justice Scalia, Judge Barrott’s icon and the most famous originalist in the past half-century argued, our courts are not those of kings or nobility but rather of justice and justice’s review; reason. His approach of constructionism capitalizes on this.

In the courts of kings, the evolution of the nation was decided by “angles in the form of kings,” the lucky few.

Not in ours.

Or is it believed still, “that men cannot be trusted with the government of himself,” that we have found those “angles” to do so?

As Jefferson answered on the fourth of March 1801,

“Let history answer this question.”

Now, two hundred and nineteen years hence, the evolution of the nation has and ought to be decided by “the will of the majority,” anointed by the profound enumeration of all willing; of all who may submit their voice by vote to the sacred alter of public opinion that is democracy. By which blood and perspiration spilled, it may be called the alter ever growing and by which the very same it anoints.

So, it is that our courts, of justice and reason ought not to decide our evolution. That is the role of our legislature.

Our courts are but the guardians of Democracy, not its executioners.

Yet, as an evolutionist would argue, despite their embrace of democracy, it is almost inevitable that an originalist should chase his own tail. For in the eyes of an originalist, the contemporary ought to be examined as it would be in the eyes of the eighteenth and nineteenth century’s racists. Not the contemporary eye. This is counter to human nature. It is counter to the truth that humans evolve in mind and in form.

So it is that by virtue, a constructionist is a conservative, not a proponent of reasonable change, liberalism, or evolution, but rather he is history’s hostage and the future’s warden. In other words, constructionists are men, “with two perfectly good legs, who however, do not know how to walk forward.” Instead of walking forward, they amble in circles. Ironically, the very man who spoke this truth did not have “two perfectly good legs,” he in fact had to roll himself forward. As he rolled this country forward in its darkest hours.

An evolutionist believes that the words of our constitution should be interpreted in today’s light.

The truth is simple: “The legislative powers herein granted shall be vested in a congress of the United States.” The role of the Judicial is to ensure that we do not go too far. Not that we don’t move at all.

An originalist seeks to builds walls to stand before and undo this natural progression. For while everything at some point must end, we must assume that our evolutions until the point of necessary stagnation must remain.

Had the principle of originalism existed throughout the history of our nation, slavery would still be protected, and voting would be taxed. Women nor blacks would have the right to vote. To view the constitution though the eyes of men long deceased and gone from this Earth is simply absurdity.

An individual’s rights should be guaranteed as per the Bill of Rights of today’s definition of “We the People.” Not the 1787 or 1791 definition. Today’s!

As Ruth Bader Ginsburg said, “The Constitution should frame a more perfect union.”

The Constitution leaves us a rout of evolution via our legislature, but originalism by definition is at odds with the very principle of legislative evolution which it is a proponent of. To ensure a stable evolution, fine lines aside the constitution must be drawn which prevent the evolution of precedent on the whim of politics as constructionist rightfully fear.

For precedent, purpose, and meaning are all separate entities which like our branches of government affect one another in the context of the law.

There should be no question that the words in today’s constitution which define themselves ought to be upheld, exactly for their meaning. That’s what words are for. Things that aren’t in the constitution which in anyway violate personal freedom; the right to life, liberty, or the pursuit of happiness should not be snuck in or given life at the whim of popular opinion. For this is how we protect our democracy from a “death by one thousand cuts.”

We should have, as citizens, the right to choose what we want to do with our lives. For example, maybe the draft should be unconstitutional. If the citizens do not want to fight a government’s war, why should they? The only thing which should be obligatory is the payment of taxes and respect for the rule of law and by virtue, respect for life. That’s last bit is subjective.

When we look at words which plainly do not define themselves, precedent, purpose, and consequence ought to be emphasized most by the justice. Values are the people’s not the judge’s.

Precedent matters above all as a form of consistency for our posterity and a backbone for continued justice. We cannot follow the words of men blindly, for they are not the words of God, therefore we must question their purpose and their values upon the time of writing. The consequence of the decision should be measured by viewing the history regarding the case form until the present. This is how a justice measures the effects not only on precedent, but on society.

The constructionist fears democracy’s “death by one thousand cuts,” but, humans only learn from trial and error. Action and consequence. Therefore, if democracy is ever imperiled again at the expense of evolution, let it be saved by the very same blood and perspiration which built it, and which thus far has preserved it. Let our courts be the arbiters of justice and reason rather than the arbiters of evolution. They must be democracy’s guardian, but not the future’s warden.

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