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Stressing Our Living Constitution As Supreme Court Nomination Fight Begins

June 27, 2018

Supreme Court Justice Anthony Kennedy is retiring and with that news comes the start of what will be the loudest and most concerning replacement process this nation has seen in a very long time.  The reason for the upcoming knock-out fight is that Kennedy was the critical swing vote on what can only be called a highly polarized court.  His votes for liberal rulings on gay rights, abortion, and the death penalty were matched by his conservative rulings on voting rights, anti-gun control measures, and most mystifying of all his position on campaign spending by corporations.

A very wide swath of the nation would have preferred that he kept his resolve for one more term.  Since that did not happen the political storm has started.

We are well aware as to why the court nomination fight will be intense.  The issues already noted above have been the topic of our recent times.  But it is the large cases that were so corrosive from the past which alerts us to why we must have a high purpose during the coming months as we think about a future justice.  Recall the Dred Scott decision which contributed to the civil war..  The unforgivable Pleasy v Ferguson ruling.  The attempts by Presidents Franklin Roosevelt and Richard Nixon to stack the court.

This blog has been most forthright about the need to have justices who understand the Constitution is a living document.  There is no other reasonable way to consider our history, law, or the future needs of the nation.  Once again the centrality of how a nominee views the founding document will be vital as we watch developments proceed in Washington.

The number one domestic issue facing the nation is the decline in the standard of how judges are selected for the federal courts, and seats on the Supreme Court.  I get the fact many do not  ever ponder the courts and the importance they have in our lives.  But those who study government and our political system grasp the heightened role the judiciary has, and why it is a national priority.

Conservatives like to consider  ‘original intent” as an intellectual notion, and insist those appointed to the bench follow ‘strict constructionist’ thinking.  The problem is such thinking is a disservice to the country, not to mention a slap at the framers of the Constitution.   For many years we have watched as Republicans spin their tale that courts must be reined in from ‘liberalism’.  But such rhetoric from the GOP only undermines the moral authority of the courts.   They very thing they profess to wish to enhance is what they actually are destroying.

To state, as the ‘originalists’ do, that the words of the Constitution do not evolve with time is a seriously flawed idea.  To pretend that the living America of ideas and events does not necessitate a Constitution that bends and adapts within the framework of guiding principles is one of the most bizarre and dangerous concepts that has ever been suggested.   Yet, conservatives say it over and over.

Those who promote such ideas are the American equivalent of a zealot in the Middle East who uses the Koran in highly misguided ways.  Meanwhile, pragmatic and logical Americans understand that past decisions made by the courts, along with public needs and expectations, and the larger values that were implied in the Constitution are needed to be used by judges when making rulings.

The horrendous Dred Scott decision can be viewed as ‘strict constructionist’ thinking at work.  But most Americans would find Chief Justice Earl Warren’s tenure on the bench more the model of what a working judiciary should resemble, than that of Chief Justice Roger Taney.  Our forward reach for progress approves of the decision of the Warren Court to outlaw segregation in public schools, while finding the Scott ruling fundamentally flawed.

While conservatives like to pretend they do not have an agenda with the placement of their judges, the fact is they hope by increasing their numbers it will allow for the undermining of past rulings, and therefore restore what they perceive as judicial over-steps.   You just know if they could go all the way back to Justice John Marshall…….they would.

One of those prized rulings that conservatives jurists disdain is the idea that ‘privacy’ is protected in the Constitution.  While it is true that the Constitution does not mention the right of privacy, over time there has been recognition that privacy is an unenumerated right.  The Griswold Case is one that every high school kid learns about; as it was the first time that the Constitution protects a right to privacy.  In that case it was about the right to contraceptives.  In 1973 Roe v. Wade the issue of privacy was a central argument and focus, this time for the right of women to opt for an abortion.  In the famed Lawrence v. Texas, privacy was used to strike down a law against gay sex.   

It goes without saying that a ‘strict constructionist’ or an ‘originalist’ would be a most dangerous type to sit on the high court.  As we start what will be a polarized and heated process, I hope and trust, that we can focus on the central issue this nation requires us to reckon with.  The type of process by which a justice seeks to find a legal ruling.

That may seem boring.  But history proves why it is most important.

  1. June 28, 2018 11:46 AM

    Chief Justice Marshall around 1825 (?) had to deal with the meaning of the commerce clause and came out with one of the most important rulings in the history of the court. He knew the nation was growing, looking westward, and transportation needed to be included with the buying and selling component of the definition of the clause.(In that case it was steamboats.) There was nothing to interpret from the Constitution about that clause. As in so many instances. That then makes the document ‘living’ and even in the early 1800 allowed those justices to reflect the needs of the times. The multiple compromises by the Founders between state-based sovereignty and a national government resulted in a text whose very ambiguities made it a ‘living’ document and thereby creating a political platform with the ability to give future generations latitude in making decisions.

  2. June 28, 2018 7:20 AM

    Sorry, Deke. You’re wrong on this one. The Constitution is a legal contract. Its writers included a detailed process for amending this contract, if necessary. If it was intended as a “living” document, meaning only what particular people in a particular time wanted it to mean, there would be no need for an amendment process.

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