Are they for us or against us?
During the recent confirmation hearings of Judge John Roberts, a terminology that stuck out and kept coming up was “strict constructionism”, so much so it was referred to in an article written by Rich Smith, who writes Investment articles for Fools.com.
Jeffrey Nesteruk also wrote a recent article in the Chronicle of Higher Education (September 16, 2005 issue) about “The Limits of Law as a Moral Arbiter”. He said some very interesting things in his article that left me thinking. (more on this later on)
Here are Mr. Smith’s thoughts on “strict constructionism”:
[Begin quote]
….. "strict constructionism" is the order of the day in
Washington. In legal circles, this term refers to a philosophy
of judicial restraint that calls on judges to interpret laws
according to their original meanings. Strict constructionists
don't want to meddle with theories of evolving community morals,
divine natural law, or seek out "penumbrae." Theirs is a code of
strict adherence to the words on the page. What's law is law,
and what isn't law -- well, go tell it to your congressman and
get back to us after you've had it enacted.
In opposition to the strict constructionists stand the "activist
judges" -- those who see a change that needs making, but who
don't want to wait for politicians to get around to making it.
Rather than wait, activist judges stretch the meanings of
existing laws just enough to achieve their ends.
For example, in the late 1930s and early 1940s, the Supreme
Court issued a string of decisions expanding the federal
government's power to regulate "interstate commerce." To do
this, the Court overruled previous decisions on the subject in
order to, for instance, outlaw child labor -- an evil that the
1918 strict constructionist Court declined to stamp out in the
case of Hammer v. Dagenhart. The New Deal Court's ends were
admirable, but to achieve them, it had to deviate from a strict
interpretation of the Constitution. [End quote] By Rich Smith of fool@foolsubs.com
Mr. Smith was quite eloquent in his explanation of the terminology, “strict constructionism” (IMO), to my layman ears. I’m not so versed on the government and all of the policies and bylaws that exist. I’m not eloquent enough in all the facts to analyze and dissect the various parts of our congress and all that. However I do try to keep myself informed as to the going ons and wherewithals because as a citizen of this good country and as a mom I have to be informed.
In his article, Jeffrey Nesteruk said that Americans have looked to the law to be the “moral arbiter of our times”. There have been so many court cases that were decided on by our court system because we, the people couldn’t decide. Cases such as those on gay marriages, affirmative actions and the death penalty.
In deciding Civil-rights cases like Brown vs Board of Education in the 1950s, even more recently, the Terry Schiavo case, the law had to intercede for the people involved were at loggerheads, or to use a better word, embattled, because of the issues involved. The court was used as the moral intervention to uphold the moral values that came into play.
Given that the court system is supposed to uphold the laws of our land, judges are given the power to settle disputes, they are our eyes and ears, so to speak, to ensure that we are not “stepped” on and that our laws and policies that have been written are upheld by each one of us. Now because of cases such as those that I’ve mentioned, and many more before that, our judges have become our ethical conscience.
Given this fact, should we worry or become wary of this? Will our society being dependent on our court system obscure the legal dynamics of what a judge’s duty should be? Should they be our guide for social change? And in so doing will those judges who are activists, being involved in whatever their cause is, make the kinds of ruling that will enhance their own causes and not be in the good interest of the American people?
If we’re going to use the court system to be arbitrators of our morality then we might not like the outcome or achieve the required outcome of the decisions they make.
I came across this book at the library, “Men in Black” written by Mark R. Levin. It was a big surprise to me (the book) because I started writing this article before I saw the book and it dealt with the very thing I am writing about here. So I was absolutely surprised at this find!
In his book Mr. Levin said that the Supreme Court “wields absolute power in how they reflect their views”. He also uses a word for what they do “tyranny” because they “imperiously strike down laws and impose new ones purely on arbitrary whims”. His belief is that the Supreme Court justices are “robbing us of our freedoms and stuffing the ballot box in favor of liberal policies that allows our country to drift to the left because they subvert democracy in favor of their own liberal agendas”. I haven’t completed reading this book yet. But these are some of the topics of discussion in it.
Some things that Mr. Levins wrote about are how:
Judicial activism upheld slavery and segregation
Why Roe v. Wade mandated abortion on demand and gutted the Constitution
The Courts imported laws from other countries to help win the culture war for extremists
Why they are granting illegal immigrants rights equal with those of citizens
They are helping terrorists file suit against the United States
Have you ever been in a position where you’re aware of some of the things that are going on in our country but you question whether you really know what is going on? It’s a bit weird to me that I was watching the confirmation hearings of Judge Roberts (and I didn’t watch it in its entirety), then I read the article in the Chronicle the next day, and then I received the email from Fools.com and bumped into the book at the library on my last visit. It all got me thinking and wondering about our judicial system.
The fact that some of these justices are not going to be partial, are not there to uphold our best interests but to serve their own agendas; if they do not wait for our politicians to pass a law, if they are going to make changes to “achieve their ends” because they can, shouldn’t we, the people be concerned?