We should ignore old laws and demand that nine, unelected officials decide what new meaning they have based on recent poll numbers.
This was the argument put forward by “MSNBC Live” correspondent Katy Tur when she questioned a guest about the judicial philosophy of President Donald Trump’s Supreme Court nominee, Brett Kavanaugh.
Kavanaugh has been described as a “textualist” who adheres to the original meaning of the Constitution.
“Based on where Americans stand on the issues—Americans have really moved in a much more progressive direction over the years—do you think it’s appropriate to continue to take such a strict originalist view of the Constitution given it’s 2018 and not 1776?” Tur asked J.D. Vance, a conservative commentator and author of “Hillbilly Elegy.”
Vance answered that Americans haven’t become progressive on everything, and besides, the Supreme Court is not exactly the place that changes based on policy preferences should take place.
The Supreme Court, as an institution, is not intended to move the country’s laws “in a progressive or a conservative direction,” Vance said.
Vance is correct.
Let’s set aside the fact that constitutional interpretations do not date to 1776, the year America declared independence from Great Britain. The Framers crafted the Constitution in 1787, and amendments were added throughout our country’s history, starting with the Bill of Rights in 1789.
Rule #1: don’t take constitutional advice from people who think the Constitution was written in 1776. https://t.co/zzlRdobmU6
— Christopher J. Scalia (@cjscalia) July 11, 2018
That factual mistake aside, Tur’s real error is her contention that old laws can simply be morphed and changed over time based on poll numbers and the whims of judges.
Adherence to precedent, even badly reasoned, is something that divides some originalist justices, but none would say that an old law can simply be changed to fit with the policy preferences of the time.
But that raises the question: Who gets to determine what window of time can pass before a law is arbitrarily changed? If “1776” is so problematic, then why not 1973, the year Roe v. Wade was decided?
Surely, American attitudes have changed since that time.
With this philosophy, what prevents a judge from simply choosing, at any time, to change laws to conform to what he believes is correct policy at that moment?
Tur’s statement (that judges need to update laws to keep up with the times) sheds light on why there’s been such a strong push to reorient our courts to ruling based on the intent of the laws, as they were originally created.
The Supreme Court, particularly during the 1960s and 70s—as even former President Barack Obama admitted—often acted as an agent of social change, thus stealing the role that the Founders intended for the legislative branch, and for that matter, democracy.
The Founders never intended to replace King George with nine civilian kings wearing black robes. Attempts by the court to discern the direction of society and to shape it is the negation of democracy.
In Federalist 78, Alexander Hamilton argued essentially for what we call “judicial review,” the ability of the Supreme Court to interpret constitutional law. He also called the Supreme Court the “least dangerous” branch.
What is often forgotten about Federalist 78, according to Adam J. White, a research fellow at the Hoover Institution, is Hamilton’s insistence that judges will “faithfully administer both the written laws and the relevant precedents.”
Hamilton could make this argument, White wrote, “because Congress and the president would be so much more powerful. Especially Congress, which not only writes the laws but also more importantly ‘commands the purse’ the main power for bending the rest of government to its will. The executive, meanwhile, ‘not only dispenses the honors, but holds the sword of the community.’”
This dynamic has changed, especially as the legislature in particular has delegated so much power to the courts, executive branch, and most worryingly, executive agencies.
This is not merely the Supreme Court’s problem. It is the problem of a system that has drifted far beyond the structure designed by the Founders.
The Founding Fathers didn’t construct our constitutional republic to be a pure democracy, as evidenced by the very existence of a Supreme Court (a “nondemocratic” element in our republic). But they did ultimately believe in the sovereignty of the people and their right to make laws for themselves.
If the values of society change and the laws do not match, this should be resolved through the democratic process by elected officials and constitutional amendments, not by philosopher kings in robes.
Tur’s argument is faulty, but revealing in one respect: It shows that the left opposes Kavanaugh not because of his experience, background, or credentials, but because of his attachment to the Constitution as it was originally written, not progressive activism on the bench.