April 22, 2014
Retired Supreme Court Justice John Paul Stevens, a stalwart member of the Court’s liberal phalanx, has published a book calling for six amendments to the Constitution he believes would benefit the nation.
I have not reviewed his proposals carefully, although should I do so it is likely I would disagree with most, if not all, of them. However, Justice Stevens should be applauded at least for this: He recognizes that the text of the Constitution is sufficiently clear that what he thinks should be changed demands amending, as the Founders envisioned, not reinterpretation to facilitate legislation from the bench.
We have a written Constitution precisely because the Founders did not want a national government with expansive, broadening, and undefined powers. For this reason, they gave us the Tenth Amendment, which says, “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.” They also gave us the process for amending the Constitution, which we have done 27 times since the document’s ratification.
In other words, the text of the Constitution has a fixed and understandable meaning sufficiently definitive and clear that torturing it into meanings (or “penumbras,” as one Justice infamously put it) its drafters never intended is intellectually dishonest.
“Legislating from the bench” has become the Left’s tool of choice for advancing an agenda they cannot enact legislatively. Neither ideology nor personal sentiment should drive judicial decisions; rather, a common sense reading of the plain text of the Constitution should be any court’s guide. As Alliance Defending Freedom’s president Alan Sears has written:
If you are in court, and you are in the right, you don’t want to be fearful that the judge might let empathy for your opponent affect his or her decision instead of ruling impartially according to the law. That wouldn’t be true justice or true compassion ... (As) Thomas Jefferson noted in 1804 … “the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and the Executive also in their spheres, would make the judiciary a despotic branch.”
Judges are tasked with evaluating arguments and evidence and making just decisions about the issues confronting them. They are not unelected politicians who have a constitutional right to make law based on personal preference or subjective conviction.
Have they become, as Jefferson predicted, “despots?” Not in the sense of sending shock troops into the streets or denying anyone the right to vote. But in the sense too often they are finding in the Constitution pretexts for action that no reasonable person rationally can deduce from the Constitution’s language, a penchant toward law-making rather than law-interpreting seems increasingly entrenched in their minds.
At the swearing-in of Justice Anthony Kennedy, Ronald Reagan described the role of judges and the danger imposed by “bench legislation:”
The role assigned to judges in our system was to interpret the Constitution and lesser laws, not to make them. It was to protect the integrity of the Constitution, not to add to it or subtract from it—certainly not to rewrite it. For as the framers knew, unless judges are bound by the text of the Constitution, we will, in fact, no longer have a government of laws, but of men and women who are judges. And if that happens, the words of the documents that we think govern us will be just masks for the personal and capricious rule of a small elite.
Arguably, Justice Kennedy has failed to live up to this standard in a number of his key decisions (e.g., rulings on abortion and same-sex “marriage”). But the charge given him by President Reagan, one applicable to all federal judges in any jurisdiction, remains compelling.
Conservatives should thank John Paul Stevens for acknowledging, even if indirectly, that the Constitution means what it says and says what it means, which is why amending it rather than elasticizing it is needed if changes to the document are desired. The amendment process can be slow and difficult, for good reason: Altering the charter text of man’s “last, best hope” should always be done with deliberate caution.