I read the Constitution recently. Before that, I read it when I was in high school , but I didn’t really think about it back then in light of the issues of the day. Now with all the talk about “judicial restraint” and the “living Constitution,” I think I can see what the Framers were trying to do.
Needless to say, I’m no Constitutional scholar so I’d appreciate any and all comments from anyone who reads this. Don’t bother with the comments link; I had to shut it down because I received a million advertisement emails, mostly from on-line poker sites. So email me at email@example.com.
Anyway, it seems to me the Framers wanted the Supreme Court to decide whether or not laws passed by the legislatures are constitutional. Since they seemed to go out of their way to write a simple and elegant constitution, I think they wanted Supreme Court decisions to be understandable to ordinary people, to dumb guys like me. (Compare the U.S. Constitution to the monstrosity devised by the European Union, a document so convoluted that even the French were confused.) Thus the Framers wanted the Court to intervene only when a law or policy clearly contradicted the plain meaning of the Constitution. In all other cases, the Framers wanted the people to decide through their elected representatives.
On abortion, it’s hard not to conclude that the Court made it up in Roe vs. Wade. In the earlier Griswold case, it found a “right to privacy” in the “penumbra and zones” of the Bill of Rights while admitting that the Constitution did not explicitly name such a right. Then when Roe vs. Wade came along, the Court applied that made-up right to privacy to support a right to abortion.
The Constitution does not mention reproduction or sex. So it’s logical to conclude that the regulation of such activity was to be left to the people. But it’s illogical to believe that the Framers wanted such “private” activity to go completely unregulated by the government. Surely, they knew the government would regulate sexual activity that was harmful to minors or threatened public health. So what does a constitutional right to privacy mean? The right to incest or sex with children? Perhaps women should have an absolute “right to choose,” but I don’t think the Constitution mandates one.
The Court also made it up when they struck down laws against sodomy. Now, such laws may be unfair and outdated, but that doesn’t make them unconstitutional. Views concerning sexual behavior change with the times, which is why the regulation of such behavior should be left to elected representatives who can be voted out of office. The Court’s decision flowed from the Griswold decision establishing a right to privacy which will be the basis of a “right” to same sex marriage.
Are racial preferences, aka affirmative action, constitutional? The 14th amendment mandates equal protection under the law. Racial preferences discriminate against whites and Asians. This is as clear as can be, so in order to find such programs constitutional, the Court has had to engage in reasoning only a deconstructionist could appreciate.
The Framers wanted to encourage an understanding and respect for the law. Elected legislatures and executives are meant to change with the times, but the Constitution (except through the arduous amendment process requiring a clear consensus of opinion) is not. The Consitution is our only defense against passing fads and enthusiasms; it’s an anchor. Let the legislatures pass laws that, if they don’t work out, can be repealed with relative ease. The Constitution is meant to save us from ourselves. It did not mean for the Supreme Court to be another legislative branch with unelected lawmakers.