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Myths 7 and 8

by Stephen Markman

Justice, Michigan Supreme Court


Note: This is a continuation of excerpts from a dissertation on the Constitution "reprinted by permission from Imprimis, the national speech digest of Hillsdale College,"  Professor Markman has written an excellent article about some of the things folks have been told about our Constitution.  I think you will enjoy his insights which you could use to help neutralize the arguments of those who are trying to destroy it.  The previous excerpt  in the series is Constitutional Myths and Realities Myth 5 & 6.


Myth or Misconception 7: The great debate over the proper judicial role is between judges who are activist and judges who are restrained.


In the same way that excessively "activist" judges may exceed the boundaries of the judicial power by concocting law out of whole cloth, excessively "restrained" judges may unwarrantedly contract protections and rights conferred by the laws and the Constitution.  It is inappropriate for a judge to exercise "restraint" when to do so is to neglect his obligation of judicial review-his obligation to compare the law with the requirements set forth by the Constitution.  Nor am I enamored with the term "strict construction" to describe the proper duties of the judge, for it is the role of the judge to interpret the words of the law reasonably-not "strictly" or "loosely," not "broadly" or "narrowly," just reasonably.


I would prefer to characterize the contemporary judicial debate in terms of interpretivism versus non-interpretivism.  In doing this, I would borrow the description of the judicial power used by Chief Justice John Marshall, who 200 years ago in Marbury v. Madison stated that it is the duty of the judge to say what the law is, not what it ought to be (which is the province of the legislature).  For the interpretivist, the starting point, and usually the ending point, in giving meaning to the law are the plain words of the law.  This is true whether we are construing the law of the Constitution, the law of a statute, or indeed the law of contracts and policies and deeds.  In each instance, it is the duty of the judge to give faithful meaning to the words of the lawmaker and Jet the chips fall where they may.


One prominent illustration of the differing approaches of interpretivism and non-interpretivism arises in the context of the constitutionality of capital punishment.  Despite the fact that there are at least six references in the Constitution to the possibility of capital punishment-for example, both the 5th and 14th Amendments assert that no person shall be "deprived of life, liberty or property without due process of law," from which it can clearly be inferred that a person can be deprived of these where there is due process-former Justice William Brennan held, in dissent, that capital punishment was unconstitutional on the grounds apparently that, since 1789, there had arisen an "evolving standard of decency marking the progress of a maturing society" on whose behalf he spoke.  Purporting to speak for "generations yet unborn," Justice Brennan substituted his own opinions on capital punishment for the judgments reached in the Constitution by the Founders.  His decision in this regard is the embodiment, but certainly not the only recent example, of non-interpretivism.


Myth or Misconception 8: The Constitution is a "living" document.


The debate between interpretivists and non-interpretivists over how to give meaning to the Constitution is often framed in the following terms: Is the Constitution a "living" document, in which judges "update" its provisions according to the "needs" of the times?  Or is the Constitution an enduring document, in which its original meanings and principles are permanently maintained, subject only to changes adopted in accordance with its amending clause?  I believe that it is better described in the latter sense.  It is beyond dispute, of course, that the principles of the Constitution must be applied to new circumstances over time-the Fourth Amendment on searches and seizures to electronic wiretaps, the First Amendment on freedom of speech to radio and television and the Internet, the interstate commerce clause to automobiles and planes, etc.  However, that is distinct from allowing the words and principles themselves to be altered based upon the preferences of individual judges.


Our Constitution would be an historical artifact-a genuinely dead letter-if its original sense became irrelevant, to be replaced by the views of successive waves of judges and justices intent on "updating" it, or replacing what some judges view as the "dead hand of the past" with contemporary moral theory.   This is precisely what the Founders sought to avoid when they instituted a "government of laws, not of men."


There is no charter of government in the history of mankind that has more wisely set forth the proper relationship between the governed and their government than the American Constitution.  For those of us who are committed to constitutional principles and fostering respect for that document, there is no better homage that we can pay it than to underst and clearly its design and to take care in the manner in which we describe it.


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