Through a glass, darkly

Textualism vs. fluidity

When it comes to the Constitution of the United States of America, I'm a textualist. A lot of people claim that they are defenders of the Constitution, the American Civil Liberties Union for one, but what the ACLU defends isn't the Constitution, it is what judges have created out of thin air that the ACLU likes.

The ACLU and their ilk like to say that the Constitution is a living document, that it needs to be interpreted in light of current events and recent judicial rulings. They fight tooth and nail to push this inaccurate view off onto a credulous populace.

The thing is though, that the Constitution is not meant to evolve by judicial fiat, but by an informed process of amendments involving the entire electorate of the country. This is the way the founders envisioned for the inevitable changes necessary to that most precious of founding documents.

The ACLU has been pushing the view that judges are the final arbiters of all things legal in this country. That view is fallacious and foolhardy and flouts the intent of the founders that each branch of government have a balancing effect on the other branches.

Think of it as a virtual game of rock, paper, and scissors. No matter which one you pick there is a choice that defeats it. If you choose rock, paper defeats it. Choose paper and scissors prevail. Choose scissors and rock is the victor.

Likewise each branch of government should complement the other branches and balance their power with power of its own. That is the way the founders set up this country and nothing has changed since our founding to make the intellectual leap that the ACLU has.

One problem is that they are selective about what parts of the Constitution they defend.

They are quick to squeal like a stuck pig when some atheist is subjected to a -- gasp -- public display of religion, when a group like the Boy Scouts wants to rent public land, or when a school district has the gall to call that two week holiday at the end of the year Christmas break, even though all of them are perfectly within Constitutional guidelines, but cannot summon up even the tiniest shred of outrage when a Christian is forbidden to speak about or display any Christian symbols in violation of the second part of the first Amendment which forbids prohibiting the free exercize of religion. In other words every single member of the ACLU is a practicing hypocrite.

Another part of the Constitution the ACLU seems to forget about is in Article III where Congress is given authority to limit which cases the Supreme Court can review.

Article III, Section 2 says:

". . . In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

In other words Congress can pass a law and limit the Supreme Courts ability to review certain cases. The Supreme Court is not the final arbiter of every thing.

The Constitution can be amended, in fact the founders themselves amended the Constitution within two years of its adoption. However, modern adherents of the "living document" theory of the Constitution don't want the Constitution amended, a process that empowers the electorate. They want activist judges to change the meaning of the various sections of the Constitution so that the new meaning reflects their view and prevents anyone from having oversight over the process because it is piecemeal, one judgement at a time.

They would strip the power from the very source of governmental power -- the people -- and give it to a small group of elitists whom they would like to rule over the people without any checks on their power.

Some judges, including Justice Sandra Day O'Connor, believe that judges should consider what courts in other coutries are using as guidelines and follow their lead. This absurd notion is so repugnant that any judge following this suggestion, whether or not they are on the Supreme Court, should immediately be impeached and never again allowed in a courtroom, unless it is for the purpose of determining how long to keep them in jail.

The Constitution of the United States of America, and only it, should be what determines a judges decisions.

Maybe it's time to start talking about a really meaningful amendment, one that restricts the judiciary and forces them to only use the Constitution, and only as it is written, in making their decisions.

Such a change would be revolutionary. All I can say is Vive Le Revolution.