Thursday, June 28, 2018

Strict Construction versus the living Constitution

The late Supreme Court Justice Scalia was famous for his belief that cases should be decided upon the original intent of the founders.   Since the founding occurred way back in 1789, it requires some research, some history, to understand the intent of men who lived better than 200 years ago.  There have been changes in the language over that much time, but the founders intent is discoverable with only a modest effort.
   Strict constructionists feel the duty of the courts is to judge cases according to existing law, not to make new law from the bench.  If new laws are needed it is the duty of the elected legislature to vote them in, not for single judges, or small groups of judges to make up new law out of whole cloth.
   Living Constitution people say that things have changed since 1789 (true enough) which requires changes in the way we interpret the Constitution to bring it up to date.  And these changes should be made by the courts.  This view is popular with people who have not been able to muster the votes to get their changes passed by the legislature[s].  It is also popular with judges, since it puts them in the driver's seat.  And it is popular with law schools and legal pundits because it makes legal history more interesting.  In modern times it has been easier to sell new ideas to the nine justices of the Supreme Court than to sell new ideas to the general public or  to the elected legislatures.
   I hope President Trump nominates a strict constructionist to fill retiring Justice Kennedy's seat on the Supreme Court.   I don't want to live under a dictatorship of the bench.

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