In an adversary system of justice, lawyers for each side cite legal principles, look for loopholes in the plain text of the law, try to find some plausible presentation of constitutional framework. But they’re not concerned with “the majesty of the law.” They want a desirable result for their client.
Courts, especially appellate courts, are supposed to be above all that. Judges are expected to sustain the principles, the constitutional framework, the plain meaning of legislation and statutes. When a case comes up on appeal, the lawyers for each side strain to open up the law for a desired result, while the judges try to squeeze the facts of the case within the framework of established law.
Into this melee fall such highbrow arguments as "Original Intent," "State's Rights" and "New Federalism." The people who made up these cute phrases weren't altruistically committed to ferreting out what was on the mind of the Founding Fathers of Our Republic. They were looking for ways to stop things they did not appreciate and advance a program that they approved of. The advocates of "A Living Constitution" are doing more or less the same thing, only approving and disapproving of more or less the opposite.
Everyone with an ax to grind remakes The Framers in the image that the speaker finds to their own personal taste.
Samuel A. Marcossen published a book in 2002 entitled Original Sin: Clarence Thomas and the Failure of the Constitutional Conservatives. The first chapter was a pointed and amusing speculation on how Justice Clarence Thomas might rule if Loving v. Virginia came up for hearing when Thomas was on the court. That's the 1967 case which ruled that the 14th Amendment restrains states from forbidding a man and woman of legal age entering into marriage when they happen to be of two different "racial" categories that some state bureaucrat or legislature has created.
"Black" and "white" are two of the more common such absurdities in American history. Thomas, of course, would be classified as "black" by any such scheme, his wife would be classified as "white," and they live in Virginia. (Her name is also Virginia.) By the terms of his own written opinions, Thomas might well feel constrained to rule that, although laws such as Virginia once had on this subject were morally wrong, the federal constitution does not restrain states from passing such laws, and the federal courts would be indulging in legislation from the bench to overturn them.
Marcossen goes on from this promising beginning to destroy any value his argument might have. He argues that the proper standard to evaluate a constitutional argument, which comes before a federal appellate court, would not be "is it original?" but "is it legitimate?" The danger of using an adjective such as "legitimate" should be obvious. Legitimacy is in the eye of the beholder. It is an infinitely elastic word.
A constitution, by its very nature, is a fundamental framework for government. It says very little about what is or is not appropriate legislation. It does however make the basic allocations of what authority the government may exercise, and what branch or level of government may exercise it. As Justice Hugo Black eloquently observed, when the First Amendment says "Congress shall pass no law..." it means Congress shall pass NO law. IT does not mean "Congress shall pass no law unless..."
At the time of the New Deal, the Supreme Court, for a time, rejected a great deal of federal legislation on the ground that it went beyond "regulating interstate commerce" to interfere with what the court found to be intrastate commerce. Many advocates of "original intent," who have arrogated to themselves the label "federalist" honestly dream of rolling back the New Deal, repealing minimum wage laws, as well as the National Labor Relations Act, and then getting rid of subsequent legislation such as the Occupational Safety and Health Act, the Clean Air and Water Act, and sundry other programs.
Advocates of preserving such innovations argue that the constitution is a "living" document which must adapt to new situations. Anthony M. Kennedy, certainly a conservative justice, observes that the framers "made a covenant with the future."
So is there a better way to examine the constitution? Can we achieve judicial review which serves neither as carte blanche for social engineering over the dead bodies of libertarians, nor as open season for concentrating wealth into fewer and fewer hands? Of course there is. And this is the only place in America you can read it.
The plain meaning of the language of the constitution, and the original intent of those who wrote, signed and ratified it, is paramount, insofar as it defines what powers each branch, level and department of government may exercise, and what powers each level, branch and department is prohibited from exercising. There IS however, an objective covenant with the future, which is not up for grabs according to the political whims of the moment.
For example, when the constitution was written, most commerce was local, or intra-state. Interstate commerce and international commerce applied to a rather limited sector of long-distance trade. Today, there is no question that almost our entire economy is at least interstate, and a huge part of it is international. Therefore, while congress might have had no power to pass a federal minimum wage law in 1779, it unquestionably had such power in 1939. That is not because a “living constitution” is infinitely flexible, but because the inexorable forces of the free market have made interstate commerce a much bigger deal than it used to be.
Likewise the Fourth Amendment's protection of "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures…” certainly did not envision that government agents should refrain from tapping a telephone line without a warrant. That is because there were no telephone lines to tap in 1783. The fundamental framework of the Fourth Amendment can only be meaningful if it can be expanded to apply to new technologies.
Otherwise, we would have to pass a constitutional amendment to account for every substantial new invention which becomes an important part of public and private life. That would contradict the very nature of a constitution, a framework which defines what power the government has in the first place, what is and is not a legitimate matter for government intervention. Such a framework should be tampered with very seldom, therefore it should be flexible enough to apply enduring principles to new developments over time.
Of course amendments, by their very nature, establish constitutional boundaries which were NOT contemplated by the Framers, although the amendment PROCESS was provided for. Few of us would wish to be without the Thirteenth Amendment today, but at the time the original constitution was ratified, slavery was not only accepted but provided some measure of legal enforcement. Dred Scot v. Sanford was not a bad statement of constitutional law as it existed at the time Justice Taney wrote his infamous opinion. It was overturned, not by changing the composition of the Supreme Court over time, with the death of old justices and appointment of new justices, but by four years of bloody civil war, which created the political atmosphere in which such an amendment could pass.
The Fourteenth Amendment, which has done far more for the civil liberties of "white" Americans than those of "black" Americans, wrought still another revolution. It implemented something James Madison had advocated, which a majority of the constitutional convention had rejected. It protected the civil rights of individual citizens from the police powers of the states, not just the federal government. Rightly so, for as Madison observed in The Federalist Papers, a tyranny is easier to establish in a smaller jurisdiction, such as a state, than in a larger territory. States, no less than the federal government, can trample on the rights of “the people.” Or as Mark Twain put it, “No-one’s life, liberty or property are safe while the legislature is in session.”
Some men have said of women, “You can’t live with them and you can’t live without them.” But this is much more true of government. We all have a desire to be left alone, and a desire to impose laws upon our neighbor. The constitution is the foundation of whether the government can, or cannot, exercise the power that whoever is in power would like to exercise. If the constitution says no, it doesn’t matter if it would be a good idea. The government can’t do it. It’s as simple as that.
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