In this week’s news about the 2016 election race, one of the many interesting sub-plots is an opinion-column fracas concerning constitutional interpretation. It started with an anti-Trump editorial in USA Today, continued with Mike Pence’s response to that editorial and, most recently, was perpetuated by Linda Greenhouse’s commentary on Pence’s article in the pages of the New York Times.
Pence’s argument in favor of Trump is that Trump “will appoint men and women who will strictly construe the Constitution and not legislate from the bench.” Greenhouse’s response to Pence is that conservatives are hypocritical to use that line because conservatives themselves now try to legislate from the bench.
Although this article has no interest in defending Trump, it does side with Mr. Pence over Ms. Greenhouse in their argument over the significant matter of Constitutional interpretation.
The left’s “living document” view undermines democracy by allowing federal judges to alter the U. S. Constitution rather than interpreting it.
During the last half of the twentieth century, we the people experienced a social transformation being imposed upon us by a number of justices on the Supreme Court of the United States (SCOTUS). These judges were able to impose their social views upon us by employing what is called a “living document” view of the Constitution. This imposition, no matter how well-intended, undermines our democratic republic.
Most proponents of the “living document” view contend that the constitutional framers specifically wrote the Constitution in broad and flexible terms so that future judges could reinterpret it in light of “the times.” In effect, justices who employ this view from the Supreme Court bench are able to take things out of the Constitution that they do not like and insert things they do. The Roe v. Wade and Obergefell v. Hodges decisions are cases-in-point.
If the left wants to alter the Constitution, it should allow the American people to have their say via the legislature.
We are not saying that the Constitution cannot be amended for our current era. We are saying that the nine unelected lawyers of the SCOTUS have no business making an amendment themselves. The Founding Fathers specified that the Constitution could not be changed except by the vote of the people; it can be amended only by an overwhelming majority in Congress and in the state legislatures. In effect, they were saying, “the Constitution cannot be amended except by the People, via their representatives.”
Proponents of the “living document” view have managed to subvert the amendment process entirely, imposing social transformation on us by the decisions of a handful of lawyers. In effect, they are saying that we the People are either too ignorant or immoral to make decisions of this magnitude; we need activist courts to protect us from ourselves.
The Supreme Court should stop bypassing the People. Even if lawyers were trained as theological ethicists or moral philosophers—which they are not—they have no business making ethical and moral determinations on our behalf. Supreme Court justices should be interpreters of the law rather than philosopher-kings who legislate from the bench.
Instead of the left’s “living document” view, We the People should demand an “original meaning” view of the Constitution.
In response, we the people should demand an “original meaning” view of the Constitution, over and against the “living document” view. Supreme Court justices should interpret the Constitution in the way that people living at the time of its adoption would have. The Constitution means what it meant to the ones who ratified it in 1788.
Each time the SCOTUS majority leans upon the “living document” view to make rulings that foster social transformation, it undermines us, the People. In the Obergefell decision, Justice Scalia’s dissenting opinion included these words:
“To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”
Mr. Pence is right. The Supreme Court should respect the Constitution of the United States by reading it the way it was meant to be read. They deserve a SCOTUS who will respect its own role as a judiciary branch rather than bypassing Congress to legislate from the bench.
One wonders how Ms. Greenhouse would react if her readers employed a “living document” view of her opinion columns, reinterpreting her words to fit their preferences. Or how one of the justices might react if we assured him that his last will and testament would be interpreted as a “living document.” One imagines they would be indignant. And rightly so. As Americans, we must say “no constitutional adjudication without responsible interpretation,” and “no social transformation without democratic representation.”
Bruce Ashford is Provost and Professor at Southeastern Baptist Theological Seminary. He is the co-author of “One Nation Under God: A Christian Hope for American Politics.” Follow him on Twitter @BruceAshford and on the web at http://bruceashford.net/about/.