Stomper: Judicial Activism / Is the Constitution a Living Document ?

The death of Supreme Court justice Antonin Scalia in a contentious presidential year has created a firestorm…

It leaves the court with a split of four left leaning justices and four right. On top of which it’s brought to the forefront the topic of how the constitution is to be interpreted and how Justices are influenced in reaching their decisions.

Which begs the question: “ Is the Constitution a living document?”

Well, DUH !!

To some, the statement that the Constitution is a “living document” is pure heresy.  To me it’s fairly obvious that it is and should be.

Allow me to plead my case.  

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First let’s consider a few definitions so we can hopefully at least start on the same page. Because I seriously doubt we’ll be ending on the same page.

Judicial Activism; Judicial rulings suspected of being based on personal or political considerations rather than on existing law.

Judicial Restraint; The theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional, though what counts as unconstitutional is itself a matter of some debate.

Strict Constructionism/Originalism;  Interpreting the constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the constitution was written and modern conditions, inventions, and societal changes. It should be noted that originalism , textualism, strict constructionism, and conservatism share many traits but are not necessarily synonymous terms.

Living Constitution;  Interpreting the Constitution in accordance with its original meaning or intent is sometimes unacceptable as a policy matter and thus an evolving interpretation is necessary. The framers specifically wrote the Constitution in broad and flexible terms to create a dynamic, living document.

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There are those who think judicial activism is practiced by judges who are not strict constructionists as defined above.  Just because a judge believes the constitution is a living document and should be interpreted, when necessary, in the context of current events not considered or anticipated by the founding fathers does not make him or her a judicial activist.

Judges usually do  -and always should – follow the theory of judicial restraint regardless of which side of the political aisle they adhere to on a personal basis.  

Just because I consider myself to be a liberal does not mean I advocate for judicial activism or disdain judicial restraint.  I think John Roberts used judicial restraint in putting aside his own personal disapproval for the Affordable Care Act and followed what he saw as established law.

I think Anthony Kennedy exercised judicial restraint when he put aside his own personal conservative ideals and became the swing vote in cases that affirmed gay rights, restricted prayer in school, and outlawed the death penalty.

I am a strong believer in the constitution being a living document, and that it was the firm intention of the founding fathers to make it such.  They knew there was no way they could address every circumstance that might occur in the future and they couldn’t anticipate how the country might develop.  Over the following years, decades, and centuries the Justices themselves expressed the belief in the constitution being a living document.

The ink on the constitution itself was barely dry and the majority of the authors were looking over his shoulder when Chief Justice John Marshall took that position:

“The implied powers under a written Constitution intended to endure for ages to come and consequently to be adapted to the various crises of human affairs.”

Marshall envisioned a “federal government which although governed by timeless principle possessed the powers on which the welfare of the nation essentially depends it would be free in its choice of means and open to change and growth”.

A review of Marshall’s decisions for the time he served is testament to that judicial perspective.

A bit of an aside here with regards to Marshall that relates to the current debate on whether President Obama should nominate and the Senate approve a replacement for Scalia with only about a year remaining in the president’s term.

The issue has unfortunately become a political football.  We tend to believe presidential elections today are over the top in terms of acrimonious behavior when compared with presidential selections immediately following the writing of the constitution. However the election between John Adams and Thomas Jefferson in 1796 was extremely bitter and partisan.

Vitriolic accusations flew back and forth between the backers of the Federalist Adams and the Democrat-Republican Jefferson. And in a very tight election, Adams edged out Jefferson for the office in 1796.  With that backdrop between the two men and their supporters, four years later on September 30^, 1800, sitting Chief Justice Oliver Ellsworth resigned due to poor health,  creating a vacancy on the court just prior to the presidential election.

Jefferson ended up winning the election in 1800 and was set to take the oath of office on March 4^th of 1801.  On January 20^th of 1801, mere weeks ahead of leaving office and the transition of power from the Federalists to the Democrat-Republicans, Adams nominated John Marshall, a staunch Federalist, to the open Chief Justice chair.  It took the Senate all of seven days to consider and confirm the appointment.

A sign that maybe that’s how the founding fathers envisioned how the process should play out???

Justice Oliver Wendall Holmes referenced his belief in a living Constitution when he wrote his 1920 decision in Missouri v. Holland, “We must consider what this country has become in deciding what the amendment has reserved.”

This case was appealed to the Supreme Court from the Western District Court of Missouri so there’s the local connection for KC Confidential as demanded by our blog purists.

Justice William Brennan expressed his belief in the idea of a living Constitution in a 1985 speech at Georgetown University, Washington, D.C.  Brennan wrote of the Constitution, “Its majestic generalities and ennobling pronouncements are both luminous and obscure.  This ambiguity of course calls forth interpretations, the interaction of reader and text.”

In a 1987 speech commemorating the 200^th anniversary of the Constitution,  justice Thurgood Marshall said:

“New Constitutional principles have emerged to meet the challenges of a changing society.  The progress has been dramatic and it will continue. The men who gathered in Philadelphia in 1787 could not have imagined these changes, nor would they have accepted that the document they were drafting would one day be construed by a Supreme Court to which had been appointed a woman and the descendant of an African slave. ‘ We the People’ no longer enslave but the credit does not belong to the framers.  It belongs to those who refused to acquiesce in outdated notions of ‘liberty, justice and equality’ and who strived to better them.”

Certainly there are justices who were originalists/textualists like Rehnquist and Scalia who eloquently articulated their positions as well.  I respect their opinions even though I disagree with them.  I also think they are in the minority.  

As critical issues come to the court that are not specifically addressed in the original text – as they have in the past and will assuredly again in the future – those originalists try to read the minds of the founding fathers and to my thinking they’re needlessly tying their hands, to the detriment of all.

I believe the founding fathers made it clear they saw the need for the constitution to be adaptable to the changes the future would bring and knowingly made it a living document.

Article 1 Section 8 is often referred to as the “Elastic Clause” granting Congress the power to pass all laws “necessary and proper” for carrying out the enumerated list of powers.  In Article 1, Section 8, Clause 3, (often called the Commerce Clause)  they granted Congress the power to regulate commerce but did not, or would not specifically define commerce. leaving that for future individuals to define when the need might arise.

As a result, the Commerce Clause has been used frequently over the years to define the powers of the government, an example noted above by John Roberts.  The founders believed that legislators and jurists in the future would be far better equipped to deal with issues when they arose, without tying their hands with 18th century solutions.

Seriously, if today’s “George Washington” lay ill in bed, God forbid that today’s doctors would “bleed” him four times.

Of course, the push back to my position is that the founding fathers created a method to alter the Constitution by amendment and it is not the job of the Supreme Court to decide what is law.

With the threshold being a 2/3 vote of both Houses or a national convention of states followed by a 3/4 vote of approval by State legislatures to ratify, the bar is fairly high and the turnaround time is long. Today’s overtly partisan Congress can’t even agree by simple majority to pass a bipartisan law.   Of the roughly 11,000 attempts to amend the Constitution, it has only been successful 27 times and the first 10 were pretty immediate.

There are currently four amendments out there circulating among the states for ratification.  Interestingly the only amendment to succeed via the national convention method of State Legislatures was the 21^st Amendment that repealed Prohibition.  It’s comforting that our state legislators placed such an emphasis on the consumption of alcohol.

If you have been following the lack of bipartisanship in Washington, the thought that Congress could achieve a 2/3 vote on anything is pure fantasy.  If the need arose for a quick resolution to a legal issue, we’d be in trouble.

Can you imagine leaving the Bush v Gore issue in 2000 to either Congress or the State Legislatures with the high bars required for resolution?  We’d still be waiting (but maybe that would be a good thing).

To ask a Supreme Court to decide 21^st century issues yet limit themselves to specific words penned in the 18^th century does not serve either justice or the American people.  Yes, we should always start with the original text but circumstances never envisioned by the founders require that Justices do their best to adapt those initial words and reasoned intentions to fit current demands.

Let’s consider the issue of the FBI asking Apple to release the phone records of the San Bernardino shooter.  Is this an overreach of the federal government or does national security take precedence?

How about the issue of abortion?  Some may say the right to an abortion is not granted anywhere in the constitution but maybe the Bill of Rights does address it?  Maybe the Bill of Rights aimed at individual liberties was a roadmap left for us to follow in those types of issues?  Maybe the Justice who votes against a women’s right to choose is the real judicial activist based on the definition above?

To interpret the Constitution as a living document does not undermine democracy or step away from the ideals of the founders.  It strengthens it.

Just saying…