We pride ourselves as a nation on being a government of laws. That means no one is above the law. If a judge goes “around the law” to fix a ticket or let a friend off for some offense, we are outraged. Why then do we often let judges interpet legislation or the Constitution to suit their purposes and goals.
Antonin Scalia spent his judicial career fighting this judicial rewriting of the law. As a result, he was often mocked and even hated. He spent his career trying to ensure that America was a government of laws and not a government of lawyers.
Constitutional government is vibrant only when the Constitution limits what judges and political leadership can and cannot do in the daily activities of government. It doesn’t matter if judges mutter something about following the Constitution. The question is – are they?
By 1912, the Constitution was 130 years old and the self-anointed “brilliant minds” of the day were finding themselves limited by its restrictions. They came up with an Orwellian way of turning death into life. In a collection of his speeches in the 1912 campaign Woodrow Wilson explained the “Living Constitution concept:
All that progressives ask or desire is permission—in an era when “development,” “evolution,” is the scientific word—to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine.
In truth, the “living Constitution” is not living. It constrains nothing, limits nothing, controls nothing and means nothing. It resembles the speed limit in many states. It has become no more than a suggestion.
Worse, it is an excuse for those who are supposed to be electorally accountable to hide behind judicial robes. If a member of Congress or a presidential candidate wants to evade a hot button issue, it is “a matter for the courts.” Respect for all three branches crashes. The elected officials are useless because they evade their responsibility. The public correctly understands that appointments to supposedly neutral courts are the most political decisions the society makes.
If you like a particular result, you’re are inclined to be happy with a ruling – but beware. Political victories can be very temporary. Victories earned on the cheap by hiding behind the courts produce a very high degree of anger. Those who lost know they never had the chance to wage a fair political fight and are furious at their opponents and the courts and the politicians who ducked.
Justice Scalia’s emphasis on “Originalism” was in direct opposition to the “Living Constitution” concept. He believed judges are bound by the law as written. They have no license to update or correct it. Recently the court majority “saved” the Affordable Care Act by “re-interpreting” some clear language in the law. Voters had removed members of Congress who voted for the law. If the court had simply read the law, it would have died. By failing to obey the law, the court refused to listen to the voters and annulled the citizens’ votes. Justice Scalia started calling the ACA “SCOTUScare.”
In the conclusion of his dissent in the Obergefell “same-sex” marriage case, Scalia warns the majority about their arrogance. He quotes the assurance in The Federalist Papers (#78 – Hamilton) that the court’s power will be limited and says:
Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.” With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.
Congress has the power to impeach the judiciary. The president has the responsibility to uphold the Constitution. When a court puts itself above the law, it acts illegally. Andrew Jackson allegedly said of a court ruling under Chief Justice Marshall, “John Marshall has made his decision, now let him enforce it.”
If I ask whether we should defer to the wisdom of judges, you might say yes. But, remember – judges are lawyers appointed by politicians. Do you want a government of laws or lawyers?
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