There has been a lot of buzz lately in conservative circles about the power of the judiciary and judicial activism. Mark Levin's book 'Men In Black' has just come out, and the timing for it could not have been more fortuitous, with the Schaivo situation now saturating the airwaves (although in Schaivo's case, a little judicial activism might have saved her from her cruel fate).
The central argument against judicial activisim is ire at the theory of a 'living constitution', that it is an elastic document that changes with the times. This theory has led to the creation of rights that the founding fathers could not have forseen, and would not have agreed upon. To the Levins of the world, the constitution is only supposed to be interpreted in accordance with the 'strict construction' theory espoused by Justice Scalia, among others.
This is not a conservative theory, in my opinion. If the Supreme Court finds a right to privacy in and among the penumbras and emanations of the Bill of Rights (as it did in Griswold v. Connecticut), why should this not be celebrated? One of the coequal branches now recognizes your natural right to privacy that has been heretofore ignored. As a republitarian, it is self-evident that more rights are better than fewer.
Moreover, the theory that the constitution is locked in and impervious to change (or should be, say the conservatives) is belied by the document itself. It contains mechanisms for amendment. Obviously the founding fathers thought that change in the constitution itself would be good and necessary, as conditions demand.
As for judges finding 'new rights' in the constitution short of amending it, the Ninth Amendment provides for this. It states that the people are entitled to all of their rights whether the constitution spells out what those precise rights are or not. The original argument against having a Bill of Rights attached to the constitution was that the government could then argue that those are the only rights you have
. Conservatives such as Levin are now making that exact argument. It ignores liberty in favor of a fundamentalist fetish for the exact words of the Constitution. It is clear that the founding fathers intended no such thing, by inserting escape clauses such as the Ninth Amendment into their document.
I don't use the word 'fundamentalist' by accident here, because much of the strict constructionist argument is a fallacy created to oppose the right to privacy (i.e., abortion). Were it not for pro-life activism, strict constructionism would be relegated to the status of a minor crank philosophy.
Much of what strict constructionism stands for is of course good and correct - the words of the Constitution actually mean something and were put there for a purpose, and a judge should be loath interpret those words as anything other than what their clear meaning entails. The good that comes from this is that strict constructionists look to interpretations that limit the scope and power of government. Unfortunately, they end up using the same interpretation to limit the scope and power of the rights of the people as well. The Constitution should be interpreted as narrowly as possible against the government, but as broadly as possible in favor of the people. The strict constructionists understand well the first part, but have forgotten the second.
2:38 AM |