America’s founders designed a system of government with a defined role for each of three branches: legislative, executive, and judicial. The system works when each branch operates as it was designed. Unfortunately, at this point it is not working very well because we the people have allowed the creation of a fourth, unelected and unaccountable branch of government, the administrative branch, which is delegated portions of the powers of each of the other three.
Judges do not make the law. That is the job of the legislative branch. They do not enforce the law that is the job of the executive branch. Judges are supposed to apply the law, as written, based on the facts of each individual case. They are supposed to do so impartially.
Judges are supposed determine what those who enacted statutes or ratified the Constitution intended them to mean. They are not allowed to rely on their personal views or purposes. They may not twist the law. They are not allowed to change what the law means to make cases come out as they might personally prefer. That is what our judiciary is supposed to be.
Since Woodrow Wilson was president more and more people in positions of authority have been willing to abandon the design for the judiciary. Wilson was a progressive, an impatient authoritarian man. He had little tolerance for things with which he did not agree. The U.S. Constitution stood in the way of the changes he believed in. He could not change it because he could not persuade a sufficient majority of the correctness of his ideas. This left him to either remove it entirely or to find a way around it.
Wilson decided to go around it by adopting “the living Constitution,” a constitutional interpretation, which is a loose constructionism. As such, it is the assertion that the Constitution has a dynamic meaning. It assumes for the document and for its writers, that it has the properties of an animate being, it changes by itself over time. The idea melds with the view that contemporaneous society should be taken into account when interpreting key constitutional phrases.
Generally speaking there are two arguments for the Living Constitution. The first contends that interpreting the Constitution in accordance with its original meaning or intent is sometimes unacceptable as a policy matter and thus an evolving interpretation is necessary. The second contends that the framers specifically wrote the Constitution in broad and flexible terms to create such a dynamic, “living” document.
Those following Wilson want judges to be much more powerful. They feel judges should be able to change what statutes or the Constitution mean so that their decisions serve particular political interests. This is not what the framers wrote. It is not what the framers meant. Without acceptance of this view of the U.S. Constitution the fourth, unelected and unaccountable branch of government, the administrative state, is not viable. It is unconstitutional.
The conflict over judicial appointments is really about whether the judiciary should operate as it was designed, with a defined and modest role for judges, or whether the judiciary should operate in a new way, with an almost unlimited and political role for judges. We need to become familiar with the terms of the struggle we are in. America is evolving. Do we intend to retain the rule of law? Or are we going to let every person on every judicial bench do whatever they want? We are seeing increasing chaos around us for a reason. It is coming to decision time. Which side are you on boy…. Which side are you on?