August 8, 2007

Jeff Zdrale's recent column celebrating judicial activism requires this opposing perspective.

He champions judges who rule not only " . . . on how the Constitution and laws read, but what they mean in today's America."

What he forgets is that the framers not only drafted the Constitution, but proscribed a constitutional hermeneutic; principles for proper interpretation, if you will.

James Madison reckoned, "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone, it is the legitimate Constitution."

Law is "organic," in that its various applications expand over time. However, it does not "evolve" in the sense that clauses must change their meanings.

Mr. Zdrale goes on to suggest that the jurisprudence of original intent is parallel to the Reformational theological pillar, "sola scriptura."

While that's certainly an interesting comparison, there's one large distinction. The Constitution, unlike Judeo-Christian scripture, has an amendment process. Those who support judicial activism rarely mention Article V of the Constitution in their essays.

In his Farewell Address, George Washington left us with a timeless admonition for folk such as Mr. Zdrale:

"If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed."

Zdrale says he admires the Constitution, but unlike rulings from activist judges, it has its glaring flaws.

"But even this masterpiece has provisions that are vague, ambiguous and, in certain places, even contradictory."

He cites some examples. "Look at the debates that still rage about whether it's the militia or the people who have a right 'to keep and bear Arms' . . . or decisions about what should and should not be prohibited as obscene, even though we're guaranteed freedom of speech."

But for whom are these clauses ambiguous?

At the time the Constitution was drafted, the militia consisted simply of able-bodied citizens. The founders were largely against standing armies, but in their writings supported firearms in the hands of the citizens. It's thus ridiculous to assume the National Guard replaces the citizens. The founders certainly championed freedom of speech, but believed speech itself was regulated upon the propriety of moral self-restraint.

John Adams eloquently declared, "Our Constitution was made only for a moral and religious people. It is wholly inadequate for the government of any other."

Certainly a far cry from the contemporary idea that indulgence in our individual vices are rights of sacred virtue.

Zdrale reminds us of the court's role based upon Marbury v. Madison. Thomas Jefferson himself railed against that decision, claiming the court now had opportunity to shape law like a putty nose.

Nevertheless, we know the difference between the court's legitimate authority in adjudicating the constitutionality of legislation versus usurping the role of the legislature itself.

Zdrale concludes saying judicial activism is OK, "As long as they do it based on the principles of justice, equity and the general welfare of every citizen in this country."

This standard is too ambiguous and subjective to be meaningful. What one group calls justice and equity, another considers the legitimization of immorality. How can that comply with the "general welfare" of every citizen?

Finally, how does Zdrale's cited standard differ measurably from a fiefdom ruled by an oligarchy of black-robed philosopher-kings who know what's best for us, without reference to the Constitution at all?

Other articles by Robert Meyer: http://www.renewamerica.us/columns/meyer