Useful Fools

The next president will likely set the course of the Supreme Court for decades to come. This is one of the most important, if little mentioned issues of the upcoming election.

There are two opposed theories of constitutional interpretation: Originalism and “The Living Constitution”. Originalism is the idea that we should interpret the constitution as it was intended by the founders and those who amended it. A living constitution means that, as the time changes, our interpretation should change to adapt to present circumstances.

The living constitution sounds like a pretty good idea. But it’s very, very dangerous. The least democratic portion of our tripartite government is the judiciary, led by the Supreme Court. They decide the meaning of the constitution. If they hold to originalism, they can only disagree about the intent of the founders.

But, with a living constitution, the judges are free to read anything they want into it - in the name of the common good. They can choose to insert modern international law into the reading of our constitution (as some non-originalists have already done). They can essentially erase “obsolete” protections in the Bill of Rights, such as the 2nd Amendment’s right to self defense, or the first amendment’s right to free speech. They can extend the reach of the federal government deeper into the lives of its citizens… whatever it takes “for the common good.” This is the road to fascism!

Defenders of the living constitution say that without it, we are stuck with 18th century rules in the twenty-first. But the founders understood this issue, and provided two different means to “modernize” the constitution through amendment. And indeed, the constitution has been modernized that way 27 times.

For example, when slavery became intolerable, the 13th amendment was enacted to abolish it, and the 14th and 15th to enable that abolition to be effective.

So this year, ask yourself: “Would I rather have a government of laws, with representatives who are elected, or a government controlled by 9 judges who rule for life?”

And if you prefer the former, don’t vote for any Democrat - because they prefer to use the 9 judges, though the living constitution, to control us, when democratic methods fail them.