While this probably isn't my most exciting post, it is informative and will help to understand a much more exciting post that I've been working on for later in the week.
With all the hubbub about Supreme Court nominees lately, I think it would be useful to speak for a moment about judicial philosophy as it relates to Constitutional law. In my class on that very subject, we learned on the first day that there are seven primary methods of constitutional interpretation.
2. Original Understanding
3. Ongoing History
7. International Practices
Textual interpretation involves looking at only the words in the text of the Constitution. Since we all know that words have no set meaning, this clearly can’t stand alone. So Justice Scalia (among others) moves on to the second, which asks the question, “What did they mean when they wrote that text?” The ongoing history (or evolving Constitution) method looks at the Constitution as a document that changes to meet the needs of the present. The doctrinal method looks at prior cases from the Court and attempts to apply the principles in those cases to the present one. The structural method looks at the whole document and tries to find overarching principles in that document and the functions that it has put into place. The ethics approach looks not only at the document itself, but also at the values contained within, and is inextricably related to the ongoing history method. And the international practices approach, while not fully accepted, looks at what other nations have done and reads the text in light of international experience.
Where am I going with this? The answer is this: I like the first, second, fourth, and fifth methods because they keep the balance in the checks and balances and the separation in the separation of powers. They respect the intent of the people who wrote and enacted the Constitution. I don’t like the third, sixth, and seventh methods at all. And the reason is that they evidence a lack of faith in the democratic process that overarches the whole Constitution.
How would you like it if, after you die, the judge looked at your will and, instead of trying to do what you wanted, he did what he thought was fair?
These (questionable) methods are based on a few lines in the Constitution. The Ninth Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Tenth Amendment reads: “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.” And § 1 of the Fourteenth Amendment reads, in part, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
If you wanted to look at the original understanding of the 9th and 10th, as I would suggest, you would know that they were intended to limit the power of the federal government and retain power in the states. But some justices like to look at the phrases “other[ rights] retained by the people,” the rights “reserved . . . to the people,” and “the privileges or immunities of citizens” and extrapolate new rights, not written into the Constitution or intended by the people who wrote it, thereby expanding the power of the federal judiciary.
This concept, known as substantive due process, is used to put power in the hands of the unelected judges so they can put their own policies into place. How do they explain it? Well, Justice Douglas (the bastard), in Griswold v. Connecticut, said it this way: “[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” That’s right. He thinks there are penumbras surrounding the rights, and that said penumbras are apparently emanating in such a way as to let the justices of the Supreme Court to do whatever they want.
They use this to strike down laws they don’t like, such as those that prohibit the use of contraceptives or abortion.
When people accept these methods, they accept rule by philosopher kings rather than by democracy.
My lack of faith in this method of constitutional interpretation knows no bounds. Many people find themselves unable to say that the Court shouldn’t strike down anti-contraceptive laws, or other equally silly and unpopular laws. However, I say this is none of the Court’s business. As the dissenters in Griswold pointed out, the Framers of the Constitution allowed for change within the document, through the process of amendment. They didn’t entrust this to the judiciary. And the political and democratic processes will solve all the problems the Court sees, given time. And when it does, people won’t be pissed at the Court for it. The Court is unaccountable, and shouldn’t be making any kinds of policy decisions.
Of course, it’s different when a law infringes on free speech, free exercise of religion, or the rights of the criminal accused. These rights are already protected, and the 14th Amendment applies those same restrictions to the states. But if we really want the Court to be doing what it does every single term, then I suggest we enact the following amendment:
“The rights protected in the Constitution shall be construed to have penumbras, formed by the emanations from these rights, so that those guarantees will have life and substance.”