As we watch the Confirmation hearings on Judge Gorsuch, let’s consider how we arrived at a condition in which our most basic natural rights hang on a 5-4 vote of a nine-member panel.
If a constitution cannot serve as the fixed standard against which the justice of all other statutory law is measured, then it serves no purpose.
Both Originalists and Living-document theorists agree that no Constitution would long survive without a way to amend it. Our Constitution provides for its own amendment under Article V, the provisions of which have been used 27 times.
There’s a world of difference between the way a “Living Document” theorist and an Originalist approach amending our country’s foundational governing document:
A “Living Document” theorist believes the job is best left to an elite body in robes; “authorizing” the 9-member panel on SCOTUS to effectively amend the “meaning” of our Constitutional text; permanently altering its application and effect for the entire nation of over 300 million people on a closed-door, 5-4 vote.
An Originalist respects the Constitution’s own provisions for amendment – pursuing desired amendments in the lawful and orderly manor prescribed under Article V.
This process requires legal proposal of the amendment(s) via either Congress or the States (in a Convention of the States for proposing Amendments) and then Ratification by at least 3/4ths of the States.
It’s a difficult, deliberative process requiring strong, sustained and widely distributed public support. And it’s well it should be if our Constitution is to serve its intended purpose; the measure of justice for all other statutory law.
It’s rather bizarre to watch self-described Liberal Progressives, now playing defense to protect the “transformation” they’d begun, suddenly so enamored with the age-old legal doctrine of Stare Decisis or “Let the precedent stand.”
Reasonable application of this time-honored doctrine insures that the law is applied with consistency from case to case and stability over time. It is of special importance in nations lacking a singular governing document, forming the core of their judicial review.
As a Constitutional Republic, America does have a Governing Document which every judge and public office holder takes an oath to uphold. Constitutional fidelity stands as the fundamental measure of justice.
When deciding cases on which a reasonable interpretation of Constitutional text could support either this or that decision, precedent is the legal “tie-breaker”.
Equality of all persons under law being a cornerstone of our Constitutional Republic, nearly all Americans reject the notion of Judicial Supremacy; that black robes or SCOTUS appointments confer infallibility. So to allow precedent to supersede the Constitutional text is to forever repeat and compound every judicial misstep.
Allowing precedent to supersede the Constitutional text while subjecting all other acts of gov’t to “judicial review” creates a 9-member panel empowered above all other branches of fed gov’t and all 50 states. What becomes of balanced and distributed power then? We don’t have to guess, it’s unfolding now. Little wonder we have such frenzied competition to position political “allies” on this court.
Balanced and distributed power relies on fidelity to our Constitution – all must be bound to that or a 9-member panel is empowered to rule the nation.