For the past thirty-odd years, the culture wars have divided citizens of the United States on issues such as prayer in schools, gay marriage, and abortion. As divisive as these issues are, reasoned public debate and arrival at an eventual consensus might still be possible if not for the excessive interventions of the courts. Activist judges reading new "rights" into the Constitution have further enflamed the public discussion by handing down rulings by fiat and bypassing attempts at legislative solutions. In some circumstances, courts have even reached outside American case law, grafting concepts of international law onto the body of the American legal framework.
The problems caused by overenthusiastic jurists run deeper, however. Not only does judicial activism have a disruptive effect on political discourse; it also undermines the rule of law and the separation of powers. In order to repair the damage that has been done to these most basic principles of the American political structure, concerned citizens must take a closer look at the reasoning behind such jurisprudence.
The question of constitutional interpretation can be summarily described as a clash of competing philosophies. Postmodern interpretation, often referred to as belief in a "living, breathing Constitution" is a paradigm which approaches the Constitution as one might approach a ball of clay. Just as the clay is molded to suit the needs or wishes of the sculptor, so too is the Constitution considered malleable enough to accommodate whatever ends are deemed appropriate by the jurist.
As one can imagine, such an approach raises serious questions, chief among them being: what on earth is the point of having a Constitution if its meaning changes with each new circumstance?
For an example of the problems that are created (or magnified) by such a muddled approach to constitutional law, look to the majority opinion of Roe v. Wade, written by Justice Harry Blackmun. Blackmun cites a "right to privacy" as the Court's justification for ruling in Roe's favor, yet no such right can be found in the Constitution. The "right to privacy," had in fact, come about piecemeal through earlier decisions such as Griswold v.
After invoking the heretofore unknown "right to privacy" and attempting to split the difference between the opposing sides of the abortiondebate, the Supreme Court handed down one of the most divisive and controversial decisions in American history. Prior to Roe, abortion had been controversial, but the Court's ruling fanned a small flame into a wildfire.
One of the chief advantages to having a government with the legislature as the primary mover of lawmaking is that the legislative process allows all voices to be heard, whether supporting or dissenting. The drawn-out process of crafting law necessarily involves give and take, compromise, and a great deal of reasoned dialogue. By summarily handing down an all-encompassing decision, the Supreme Court bypassed the forum of public discussion in favor of crafting hard and fast law.
In this, the Supreme Court made two serious mistakes: first, the justices extrapolated meaning from the Constitution which did not exist prior to their interpretation. Second, they created a new federal law and superseded existing state laws. In essence, nine justices behaved as if they had been endowed with the legislative authority to create, rather than merely interpret law.
This is not to cast aspersions on the intentions of Harry Blackmun and his colleagues; their intentions were to resolve a potentially divisive issue, and therein lies the problem. At the heart of the postmodern paradigm is a focus on the ends--its approach is primarily focused on outcome.
Outcome-based rulings, however, undermine the rule of law, as rule of law stems from continuity and uniformity. While the legislature and the executive branches are able make changes to policy on a daily basis, the judicial branch's primary duty is to preserve the existing foundation of law. 2 Chronicles 34 tells of the revival of the nation of Judah under the young King Josiah; this national renewal began with the discovery of Deuteronomy, ancient Israel's code of law. The restoration of the lawbook to its proper place led to the reinstatement of the rule of law in the kingdom Judah.
Unlike postmodern interpretation, originalism focuses on the process of jurisprudence, rather than on a desired result. According to Thomas Jefferson, the goal of Supreme Court justices should be to "carry [oneselves] back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."
The goal of originalism is to divine the original intent of the Framers and apply it consistently to the various issues raised in Court briefs. If the Constitution requires expansion or amending, there is a legislative process for doing so. However, until such time as changes are made via the legislature, the Supreme Court's duty is to interpret and uphold existing law--not act as the arbiters of social change.
The reason for this can be found in the Federalist Papers, written by Alexander Hamilton, James Madison, and others, to explain the relationship between the three branches of the federal government. In Federalist Paper #78, the Founders explained in detail that the judiciary's role was to measure existing law against the Constitution, to ensure that the body of federal law remained consistent with the founding document.
Hamilton and Madison further specified that judges were to hold their offices on the condition of "good behavior," which is what led to the tradition of appointing Supreme Court justices for life. Their reasons for this were twofold; first, it would insulate justices from any pressure exerted by the legislative or executive branches, and second, the Founders deemed law to be a sufficiently complicated field that it required interpreters who had years of expertise to draw upon.
Clearly, the Founders had intended that the branch of the judiciary act as a check upon the potentially zealous lawmaking activities of the other two branches--a near impossibility if the judiciary itself were to begin dabbling in the art of crafting law.
This was indeed prescient of the Founding Fathers; our political landscape has been rent by the controversies which an activist Court has exacerbated. Coming to political consensus on issues such as gay marriage and abortion are difficult under the best of circumstances; when decisions are handed down from on high with no opportunity for legislative (and subsequently, public) debate, citizens are robbed of their chance to offer their input. However, this is not cause for conservatives to despair; damage that has been done to our system by years of judicial activism can be repaired. The first step is to replace the "new" understanding of judicial interpretation, and restore originalism to its proper role.
