Overstepping Bounds & Constitutional Conventions

This past week, United States Supreme Court Justice Antonin Scalia spoke at the University of Richmond about originalism (the method of Constitutional interpretation he subscribes to, in which the language of the document is given its most literal meaning).

In Justice Scalia’s opinion, the Founders of this country spoke very clearly through their Constitution and it’s not up to us to re-found America or its laws; rather, our task as citizens is to uphold those original Constitutional values and live according to them. Treating the document as something living and changeable, Justice Scalia said, allows “five out of nine hotshot lawyers to run the country” (presumably by arguing for whatever whimsical interpretation of the Constitution most fits the momentary needs of their client).

Justice Scalia also criticized the broadening interpretation of the 14th Amendment’s due process clause, which guarantees access to the process of law (courts, judges and the like). Lately, he says, that clause has been expanded well beyond its intended scope to guarantee particular freedoms, though it was never meant by the Founders to be a guarantee of liberties; only a guarantee that liberties wouldn’t be taken without some kind of legal process.

Messrs. Washington, Jefferson and Adams lived in a world in which the English monarch could confiscate their lands and holdings at will; they wanted their new government, should a similar need to confiscate arise, to at least be accountable to some fair judicial process, pre-confiscation, wherein the owner of requisitioned things could plead his case against the requisitioning.

Specifically, Justice Scalia spoke against the applicability of the due process clause being enlarged to fit abortion. In his opinion, the clause doesn’t guarantee the freedom to have abortions… only the freedom to not be deprived of them without due process. Implicitly, then, people can be deprived of the freedom to have abortions so long as the deprived have their day in court first. Justices should uphold the original meaning of the Founders’ Constitution, Justice Scalia believes; they shouldn’t take it upon themselves to issue rulings which extend its reach to areas it was never intended to reach, or which force parts of it to perform functions they were never intended to.

People do, and probably always will, disagree with Justice Scalia. They argue that judges can’t rely on the intent of the Founders in coming to conclusions because their intent is almost impossible to guess at. They lived centuries ago, in a world very different from ours. Plus, a good number of words and grammatical constructions don’t have the same meaning today as they did in 1776.

Still, there is one intention of theirs which is very clear today, and which is easily identifiable because it’s set down in all of our founding documents and is one of the most essential tenets of our government: there are three branches of government and they operate independently of each other, so that any one might check and balance the other two. No one branch was meant to have more power than another. Revolutionary Americans fought a war to throw off one monarch, and they meant for their founding documents to guard them against any one branch of their new government taking too much power and becoming a new monarchy.

In that regard, Justice Scalia, politically correct or not, is absolutely right. It is not for one branch of government to do another’s job. If there is one founding intent we can be sure of, it’s that government is limited in this regard: each branch does its own work, and nobody else’s. And extending the reach of the Constitution, when and if necessary, is not the judicial branch’s job.

Are there likely some things in our founding papers which are outdated? Probably. Provisions dealing with African-Americans and women come to mind most quickly. Are there some portions of our Constitution which should be changed or made more modern? There probably are, which is why that document includes a mechanism for revision: the Constitutional amendment… not the courts.

It’s possible that the particulars of the Constitution (though never its core ideals) have to change and adapt over time to address “advances” in culture and technology. What is equally apparent is that, when it comes to how those changes are effected, Justice Scalia is dead-on: it’s not the courts’ job to make them. That task belongs to the legislature, and to the citizens of this country. If the Founders were clear about anything, it’s that.

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