Retired Supreme Court Justice John Paul Stevens, a stalwart member of the Court’s liberal phalanx, has published a e-book calling for six amendments to the Constitution he thinks would benefit the nation.
I have not reviewed his proposals cautiously, though ought to I do so it is very likely I would disagree with most, if not all, of them. Even so, Justice Stevens should be applauded at the very least for this: He acknowledges that the text of the Constitution is sufficiently distinct that what he thinks should be modified calls for amending, as the Founders envisioned, not reinterpretation to aid legislation from the bench.
We have a composed Structure exactly since the Founders did not want a national authorities with expansive, broadening, and undefined powers. For this explanation, they gave us the Tenth Modification, which says, “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 folks.” They also gave us the approach for amending the Constitution, which we have carried out 27 moments given that the document’s ratification.
In other terms, the text of the Constitution has a set and comprehensible that means adequately definitive and obvious that torturing it into meanings (or “penumbras,” as one particular Justice infamously place it) its drafters never supposed is intellectually dishonest.
“Legislating from the bench” has grow to be the Left’s instrument of selection for advancing an agenda they cannot enact legislatively. Neither ideology nor personalized sentiment should drive judicial choices instead, a frequent feeling studying of the simple text of the Constitution must be any court’s information. As Alliance Defending Freedom’s president Alan Sears has composed:
If you are in court docket, and you are in the proper, you really don’t want to be fearful that the choose may permit empathy for your opponent affect his or her determination alternatively of ruling impartially according to the regulation. That would not be true justice or true compassion … (As) Thomas Jefferson mentioned in 1804 … “the viewpoint which gives to the judges the proper to make a decision what rules are constitutional and what not, not only for on their own in their personal sphere of action but for the Legislature and the Govt also in their spheres, would make the judiciary a despotic branch.”
Judges are tasked with assessing arguments and evidence and creating just decisions about the troubles confronting them. They are not unelected politicians who have a constitutional proper to make legislation based on private preference or subjective conviction.
Have they turn into, as Jefferson predicted, “despots?” Not in the feeling of sending shock troops into the streets or denying anyone the appropriate to vote. But in the perception too often they are locating in the Structure pretexts for action that no realistic person rationally can deduce from the Constitution’s language, a penchant towards law-producing instead than law-decoding looks ever more entrenched in their minds.
At the swearing-in of Justice Anthony Kennedy, Ronald Reagan described the role of judges and the threat imposed by “bench legislation:”
The function assigned to judges in our system was to interpret the Constitution and lesser legal guidelines, not to make them. It was to defend the integrity of the Structure, not to include to it or subtract from it—certainly not to rewrite it. For as the framers understood, unless of course judges are sure by the text of the Constitution, we will, in fact, no for a longer time have a government of regulations, but of males and females who are judges. And if that occurs, the words and phrases of the documents that we think govern us will be just masks for the private and capricious rule of a small elite.
Arguably, Justice Kennedy has failed to live up to this normal in a amount of his crucial decisions (e.g., rulings on abortion and very same-sex “marriage”). But the cost provided him by President Reagan, one applicable to all federal judges in any jurisdiction, remains compelling.
Conservatives must thank John Paul Stevens for acknowledging, even if indirectly, that the Constitution indicates what it states and claims what it means, which is why amending it fairly than elasticizing it is needed if alterations to the document are sought after. The modification procedure can be slow and hard, for good reason: Altering the charter textual content of man’s “last, greatest hope” need to always be accomplished with deliberate caution.