Today in History
MYTHS AND REALITIES
7 and 8
by Stephen Markman
Justice, Michigan Supreme Court
This is a continuation of excerpts from a dissertation on the
Constitution "reprinted by permission from Imprimis,
the national speech digest of Hillsdale College, www.hillsdale.edu."
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.
or Misconception 7: The great debate over the proper judicial role is
between judges who are activist and judges who are restrained.
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
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.
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.
or Misconception 8: The Constitution is a "living" document.
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.
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."
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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