There are volumes and volumes of well-reasoned treatises on the subject of COnstitutional history. People who have poured over every letter and other written clue by Madison, Jefferson, Adams, etc. looking for clues about what the “founding fathers” were thinking when they penned the Constitution. My 2nd grader knows that the US was formed, in part, in reaction to the political persecution the Puritans faced in England. Am I re-gurgitating lessons taught to me by professors, yes. Are those lessons well researched and as close to the “truth” as we can get hundreds of years later? When taken as a whole, and allowing for all the different interpretations, viewpoints and political agendas–probably. But I am using my own judgment and intellect in weeding through the hype to get to my own opinion. That is what education and intelligence are supposed to be about.
Most Constitutional scholars agree that the document was written to guarantee certain identified, inalienable, basic rights that were also the foundation of the Magna Carta. (Our founders were a product of their English heritage, after all.) Some of these rights are based on moral principals of right and wrong. To say that these principals stem from a “creator” is to ignore the history of the development of the Constitution and the political climate that the founders were educated in and reacting to. Blackstone may be just as much “the creator” as any one’s version of God in this context.
Using God as your political yardstick was a mistake made hundreds of years ago, and while the founders may have been religious men, they were aware of the perils associated with a national religion (Queen Elizabeth I and Henry VIII were not entirely cold in their tombs when George and Martha came over from England.)
As for the “living document” argument, I prefer to see a government and the principals it is based on bend and change to fit in with contemporary life. Most of us can agree that slavery was a bad thing–imagine if the legislature and courts of the day refused to interpret “freedom” as applying to slaves (acutually, I think the argument for slavery took the stance that slaves were not “men” under the COnstitution–“all men are created equal”–the same argument used to keep women from voting). I find the literalist argument appalling. There is no way anyone can frame a law that will apply to every situation over the span of centuries and then apply it literally hundreds of years later. But I think the founders did a pretty good job of sketching out the basics and allowing the citizenry to mold it and shape it into what is “right” right now. Yes this can lead to abuse and it can play both ways. The “penumbra” of rights embodied in the first amendment does not include a right of privacy–thus if read literally does not support a woman’s right to choose. But what else is stripped from a citizen if you have no privacy rights? If you believe in one, you have to allow for the other. I personally want my privacy–in all its forms–protected from government interference.
Lastly, the “activist judges” issue–judges have to follow precedent. Most written opinions (at the state and federal appellate levels and above) are written by a group of judges, with the author typically writing on behalf of the majority that agreed that a case should have a particular outcome based on the facts and law particular to that case. These cases build off each other. Often you can follow a particular idea through the cases that preceed it. Sometimes, you can see how a dissenting opinion in a case 100 years ago raised some issues that start to make sense as the case law in a particular area develops over time, evenutally forming the basis of a majority opinion that overturns prior case law. The predecessor cases to Roe v Wade are a good example (no, I am not going to summarize them here). My point is more that the process of “making law” by the USSC (and the higher state courts) is rarely susceptible to “rogue” judges reinterpreting the law on a whim. If they make a change in the law, it is usually a consensual matter amongst their brother and sister justices that has been examined and reasoned over time. I cannot tell you how many cases you study in law school where the judges say–“this case should be decided in favor of X, but the law as written by the legislature and its interpretation over time does not allow us to come to that decision, even though the outcome based on the law is unfair and unjust to this plaintiff X. Decision for the other side upheld.” That is Judge-speak for: Legislature, get back in session and fix this stupid statute because it creates a bad result.
I’m sure someone out there will pull out their Fox talking points and tell me there are all sorts of activist judges running around willy-nilly handing out judgments based on thin air. Those are the highly publicized exceptions to the rule and, if people had time to actually read the opinions, are probably based on some exception or weird twist of the facts in that case. Judges are only human after all. But by and large judges don’t sit at home at night thinking up ways to “make new law”–there are plaintiffs and defendants and an army of lawyers on either side pushing at the edges of laws trying to make them change.
