But the trouble isn't transitory; it's not some random walk trending to a historical mean. Rather, there's a reason for rising tempers: liberal Constitutional re-interpretation. Starting in the 1960s, the left suddenly proclaimed a "living Constitution" that could shift or expand in accordance with the impulse of the judge or justices:
Since the 1960s, the judiciary, and the nomination process, have become notoriously politicized, abandoning "neutral principles" for forced paternalism. That's because liberals started skirting the democratic process, instead pressing the Court to impose their agenda in the guise of Constitutional interpretation, inconsistent state laws notwithstanding. As Ninth Circuit Judge Diarmuid O’Scannlain observed:The pacific process of the past wasn't a product of "parties working it out." No such practice existed. Instead, judicial appointments were far less contentious because judges were understood to adhere to "neutral principles" rather than adding Constitutional text according to the vogue de jour. Once that genie escaped, all law -- and judicial appointments -- became wholly political. As MaxedOutMama observed, "It is difficult to find any logical limit on the scope of this assumed judicial power save that of the judiciary's own self-restraint." And it's probably impossible to walk back that cat.[T]the disputes over this or that nominee are not an end in themselves but rather a reflection of a larger trend: The seemingly ever-increasing centrality of federal courts in our divided system of government. Indeed, on issues such as abortion, assisted suicide, affirmative action, and church-state relations, the courts have become a focal point -- perhaps the focal point -- in the . . . national debate.
Liberals can't have it both ways. They insist the Constitution's sufficiently flexible to reveal almost anything--but declare war on anyone open-minded enough to observe that slinkys bend both ways. Avoiding popular will (all those unenlightened voters; too messy!), they Federalize their pet proposals but pretend to prefer states' rights when convenient. Ironically, the very leftists claiming the Constitution has no fixed meaning now stridently defend the suddenly settled spin on privacy, state action, affirmative action, etc., as if other readings were impossible. Hypocrites.
The right still attempts to employ neutral principles. For example, Clinton nominee Ruth Bader Ginsburg was General Counsel of the ACLU for seven years and on the ACLU Board for six. Pretty much the touchstone for liberalism. Yet, she was confirmed 97-3; neither politics nor abortion attitudes were at issue (despite Ginsburg's odd preference for equal protection over privacy). Still, somehow, lefties won't concede "conservative judges 'have every right to serve on the higher benches.'"
Inarguably, dodging democracy and punting politics to courts is a winner for the left. Alas, those triumphs made civility and unbiased interpretation of law scarce. Today's Democrats abandoned more than neutrality; they've abandoned all principle--as did Senate Republicans. The difference is liberals blame the discourtesy on us.
6 comments:
Great topic and excellent post.
Written opinions from past similar cases are more important than the law as it was originally written. The Constitution itself is a simple document, yet you could fill a library with the volumes of case law in which judges have interpreted it. And since judges hesitate to strike down others' opinions, the law gets ever more contorted as each judge injects their own $0.02 into their interpretations
The opinions become stacked one upon another like a house of cards. Eventually the law can become so convoluted that 2+2=5, and the Constitution has essentially been "ammended" through judicial fiat, instead of through methods originally spelled out.
Our founding fathers designed a simple scheme for Federal government using an ingenious system of checks and balances so that no one branch would get too powerful. Now, no one really knows just what the law really is, because it all depends on the judge(s)for that particular case.
I wonder how the Constitution would read if the Federal Judiciary would review it line by line and rewrite the original wording to reflect how each Article and Section are actually interpretted today. Could anyone even write down into words what it has morphed into?
What a bunch of mush the greatest political document ever written has become. How sad for this Country and for the concept of limited Government and inalienable rights of her citizens.
And while there are plenty of "ne'er do wells" around today, the sacking of the Constitution was one of Abraham Lincoln's forgotten legacies. He burned the Constitution in order to save the Union. Its been smoldering ever since.
JMS, Michigan.
This particular post deserves a place in the annals of good blogging. Your links have kept me happily busy for hours.
May the blogging force always be with you. The O’Scannlain speech is a superb link.
JMS had some good points. It is easy for precedent to end up with a 'mush' in the end. Unfortunately, civil law, practiced in Louisiana, doesn't end up with much better results. Civil law is intended to have a clear meaning that everyone can interpret, and judges are not beholden to precedent, but this often leads to even more unpredictability than you find in Common law jurisdictions.
"I wonder how the Constitution would read if the Federal Judiciary would review it line by line and rewrite the original wording to reflect how each Article and Section are actually interpreted today. Could anyone even write down into words what it has morphed into?"
I think the more appropriate question is, could the founders have written it any differently that it could be applied to both their day and ours. My opinion is no.
"Blogger Barking Dingo noted, correctly,"
Carl, you gave me credit for getting something correct? I'm impressed :)
Thank you JMS and M_O_M; I kinda liked it myself.
I like JMH's challenge to codify today's "living Constitution," root and branch. Bet it would take longer than the Founders required to create the Constitution.
And, Dingo, you're right (again) that civil law is way worse. I've had the opportunity to write telecom laws for a number of other countries, some of which were based on civil law. I always tried to introduce a common law process for decisions of the regulator. It just works better. See SEC v. Chenery Corp., 332 U.S. 194, 202-03 (1947) ("Not every principle essential to the effective administration of a statute can or should be cast immediately into the mold of a general rule. Some principles must await their own development, while others must be adjusted to meet particular, unforeseeable situations. In performing its important functions in these respects, therefore, an administrative agency must be equipped to act either by general rule or by individual order. To insist upon one form of action to the exclusion of the other is to exalt form over necessity.").
However -- and, Dingo, you must have known this was coming -- I emphatically disagree with your assumption that the Constitution can't "be applied to both their day and ours." Of course it can--and does. Not being know-it-alls, the Founders relied on process to preserve present-day relevance.
That approach worked fine for years. The Founders compromised on slavery, but the issue was resolved 80 years later. We prohibited booze, then changed our mind. We expanded suffrage to women, and are forbidden even to muse about the simpler past. Success stories all.
I challenge you, Dingo, to provide a cogent and compelling case that strict construction doesn't work. And, show me how your approach is democratic.
I was saying that I don't think that the founding fathers could have done a better job at writing the Bill of Rights that would have applied to both their day and ours... not that it can't be applied to both. I may have been unclear.
As to strict constructionist, for a few:
"nor cruel and unusual punishments inflicted." Impossible to be a constructionist since it is an interpretation mandate.
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,"
Doesn't really offer you much protection in the digital age.
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
That is a pretty big open ended amendment, wouldn't you say. This amendment has been largely ignored by the courts because of what it could really mean.
Oh, yes. Lets not forget the right to bear arms. I think that we can both agree that in today's day, you cannot be a strict constructionist.
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