As the title of this blog indicates, I have no real desire to be anyone's master. Unfortunately, there are many who do, and Donald Sensing has an excellent post decrying the usurpation of power by the judiciary from the American people. As Rev. Sensing rightly points out, most judicial over-reaching stems from the bizarre concept that the Constitution is a "living document".
Last time I checked, no other legal documents are "living" other than inconvenient constitutions. The reason we write things down is so that there's no misunderstanding or reinterpretation later by one of the parties involved.
For example, I have an employment contract that entitles me to a certain wage and entitles my boss to a certain amount of work. It would be ridiculous for me to sue him for higher pay on the premise that, although my contract specifies a specific rate, he now owes me more because our relationship as "matured". We're each certainly free to renegotiate the contract, or release ourselves from it using the mechanisms it defines, but to simply assert that it now means something new because time has passed and circumstances have changed is absurd.
Yet that's exactly what much of our judiciary does every day. When the Constitution was written each part had a very specific meaning, and as a whole it establishes a relationship between the American people and the government that serves us, as well as relationships between the three branches of government. What many judges do by claiming that the Constitution is a "living document" is create entirely new meanings, without regard for the agreement that was made originally and without consultation with the other parties to the contract: the American people and their elected officials.
Congress and the President go along with it by selecting judges who will interpret the contract in agreement with them rather than selecting judges who will enforce the contract as written. It's ludicrous, and the American people should call another Constitutional convention to reign our servants in and re-establish ourselves as sovereign.
Relying on southern legislators and voters, we'd still have segregation in the South. In Oklahoma, several years after the Supreme Court ruled for integration, Oklahoma voters refused to overturn racist laws, even though they were unenforcable. Before the "one man one vote" ruling, rural Oklahoma legislators repeatedly drained funds from Oklahoma City and Tulsa and siphoned them to rural counties.
However, I do find some merit in criticisms of the "living document" view. For example, it is the "living" view, as promoted mostly by conservatives and Republicans, that has allowed for Wal-marts, housing developments and more to effectively condemn private property to benefit a different private use.
And President Bush's promotion of faith-based government spending is clearly relies on the Constitution as a "living document."
I thought your blog title was a reference to "Jack of All Trades", i.e. you have a broad background in knowledge in a lot of things, but are "Master of None" (meant as a compliment in this case in that you are not narrow).
Jefferson's much-quoted "wall of separation" letter, as well, was a response to a particular Baptist organization asking for governmental protection above and beyond that granted by the law as a whole. Six years later, he followed up his thoughts on the matter in a letter to Virginian Baptists:
It is clear from this passage that Jefferson's fear was of a sole, State-supported church whose levies and mandates were backed by force of law and arms, as was the case in England.The Bush plan for "faith-based initiatives" covers only those programs which are charitable outreach services performed in a non-proselytizing manner. Also, it is available to organizations from any faith -- in effect, it simply removes the discriminatory barrier that has existed prohibiting faith-based charities from accessing the same resources as secular ones.
Of course, the "living document" approach is responsible for this entire scenario, as the mandate of welfare programs is not within the enumerated powers of any branch of the Federal Government, and especially not Congress. (And if you think that the Constitution gives Congress the power to "promote the general welfare," think again -- James Madison shot down that argument nearly two hundred years ago:
The Framers knew the tendency of government to encroach and subsume the lives of its people all too well, and laid numerous protections in the founding contract to prevent such issues. What they underestimated was the creative cunning of those determined to wrest power from the hands of the people, and the degree of complacency with which the populace would respond.The framers of the Consitution could not have envisioned the Internet or nuclear weapons. An "enduring" justice might have to rule that individuals have the right to develop their own nuclear arsenal.
An "enduring" Supreme Court would not have injected itself into the presidential election of 2000.
Would "enduring" justices have ruled against school segregation in Brown versus Board of Education?
Constitutional principles should be enduring, but their applications have to be somewhat "living."
Joel, I understand some of your concerns above, and want to respond.
In regards to "anyone" wanting to build a nuclear bomb; well, I don't think anyone wants to destroy themselves and 200 other square city blocks, but really: What is so different between a government excercising its "right" to build one, and me building one?
What makes government so much more "able" or "justified". Government is just people.
I would agree that this is a very extreme example, but nontheless paints a great picture of something called "state worship". Somehow a lot of individuals have this idea that Government is somehow superior to the individual; morally, intellectually, and spiritually.
That's baloney. However, the proliferation of this view is what motivates, and allows, government to take over the very fabric of our lives.
Life, liberty, and the pursuit of happiness doesn't have a different meaning for government than it does the individual.
And many might say, "does that mean that I can shoot peopple? After all, it's my right to life liberty and happiness, isn't it?"
Please. When the creator endowed us with our "unailenable rights..." he also doled out a measure of responsibility. Our rights were given to us by God, not government. The more we move away from Him, the more we will continue to see our rights slip away.
There are those on the left that place too much emphasis on the community and those on the right that place too much emphasis on the individual.
I think the nuclear weapons bit can be nicely handled under Section I, Article 8 of the U.S. Constitution. For the most part, that is. Of course, there's the off-chance that someone can mine, purify and machine nuclear fuel all in their back yard. Unlikely, though.
As for the 2000/Supreme Court thing - Agreed, the SCOFLA should not have injected itself into the presidential election by claiming the law didn't mean precisely what it said.
Or is that not what you meant?
Dave: I don't know if that's what I meant, because I don't understand your point. Please elaborate.
As for courts ending segregation, there's no reason to think that wouldn't have happened on its own without such social upheaval over the next decade or so. Similarly, Roe v. Wade is commonly seen as a misjudgement by pro-abortion forces -- without the ruling, most states would have legalized abortion anyway soon enough, but the ruling galvanized anti-abortion groups and led to the powerful pro-life movement we have today. In theory.
Legislating from the bench may have good consequences, but it's easy to argue that they aren't as good as could have been had otherwise, with patience.
"Would "enduring" justices have ruled against school segregation in Brown versus Board of Education?"
That depends on what, exactly, is "enduring." If it's the written Constitution that endures, then yes. An "enduring" judge in 1954 would have little trouble looking back to the clear legislative intent of the 14th Amendment, implemented it, and reached substantially the same ruling as the Brown court did. On the other hand, if it's the court-created precedents that "endured," then we'd be in trouble, as the Supreme Court, having first given us that odious "separate but equal" rule in Plessy v. Ferguson, would no longer be in a position to take it back.
Racial segregation is, IMO, an excellent example of how much better off we'd be as a nation if no one legislated from the bench. If courts had merely applied the 14th Amendment as written, segregation would have ended as soon as that amendment was ratified, in 1868. Instead, our nation was subjected to almost a century of "legal" segregation afterwards, and we have the judicially activist, racist Plessy court to thank for it.