Strictly Interpreting The Constitution

This week Washington brought us a new edition of the periodic confirmation process for a new Supreme Court judge. Sonya Sotomayor is a Puerto Rican-American with long judicial experience and (a rarity) field experience in prosecutorial law. I have no idea if she is qualified for this judgeship or not; others will determine that for us. Given the current political makeup of the Senate, her confirmation is pretty well assured baring any damaging revelation that may yet arise.

Nevertheless, politicians will still use these televised hearings to make righteous-sounding speeches, gain points from their respective voter bases, and regurgitate stock political slogans in search of news media headlines. Most of which will actually have little to do in substance to Ms. Sotomayor or her confirmation.

So far, there seems little dispute about her legal qualifications, earning a top rating from the American Bar Association, or about her 17 years of experience as a federal judge. The major complaints that we hear are:

1. Her comment to the effect that “a wise Latina will likely make a better conclusion than a white male.” No doubt she wishes she could put that comment back into the tin box, but it is too late. Nevertheless, there is a truth in her comment. While her opponents say that the comment introduces racism into her legal thinking and promotes “law by personal opinion,” in reality it simply describes what is already happening on the court. No judge escapes the reality of his/her background, personal experiences, and lessons learned over a lifetime. That bundle of personal history colors what one sees, thinks about, considers relevant, and how one measures importance. It takes Ruth Bader Ginsburg to help eight older men understand the impact of what strip-searching a 14 year-old girl really means. I do not know of anyone currently on the court who can help them understand the devastation of learning that you have been underpaid for decades solely because of your gender.

It is from one’s sense of outrage at these events, and the recognition of the outcomes of these events, that one energizes intellectual efforts and finds nuanced openings of interpretation in the law. From that enlarged perspective, one finds not only the factual logic of the law, but also the justice which must give the law a context and reason. By any measure, the Dred Scott decision in the 1850s affirming Negroes as “property” was wrong within itself, regardless of the political currents of the day or the reading of the statute books.

2. Which leads to the repeated mantra of those conservatives who yell for “someone who will not legislate from the bench, but who will strictly interpret the Constitution as the Founding Fathers wrote it.” This is another case of horse-dung spoken by people who would not know a Founding Father if they happened to see one rising up from the grave.

Article III of our Constitution established the federal court system. It is considerably shorter than the sections defining the executive and legislative branches. It essentially: a) says that there will be a Supreme and inferior courts as needed with lifetime judges; b) defines the scope of the court’s jurisdiction; c) establishes rules regarding charges of treason (important given the colonies’ experience with England). That’s about it for the courts. No procedural rules, no guidelines for decisions, no set limits on its role, no definitions about what its powers are. All left unanswered, an expectation of sort of following a sense of what courts had been doing before in colonial America – except that there had been no federal court system over all of the colonies. Therefore assumedly just wing it from here.

It was not until 1803 (16 years after the Constitution) that Chief Justice John Marshall’s court even declared that it had the power to declare a congressional law unconstitutional! People may have assumed it, but the Constitution never said it had that power. So the court proactively and unilaterally said “we have that power; it was implied in the constitution.” Neither Congress nor President Jefferson challenged that self-proclaimed authority. Further, Marshall went on to say that the criteria for determining constitutionality was, “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.” You could drive a train through that ambiguity. So much for “expressly stated powers only.”

To ask that courts interpret the law “as the Founding Fathers intended (in 1787)” and not legislate from the bench is an absurdist position. Courts have been interpreting the law for 200 years. These interpretations come from the express wording of laws, a judge’s perspective on personal values shaped by experience, a weighing of impact, and the best possible balancing of conflicting legal views – which is why cases come to a Supreme Court in the first place. To re-read the Constitution and the history of its creation is to understand that there was not one collective mind writing this document. It is a broadly-worded framework containing but a few absolute requirements driven by their experience of the Revolution from English rule. It reflects the compromises of men with many different goals and perspectives, with most all details to be filled in later (including a number of critical issues that were ducked entirely, e.g. the slavery issue). Detailed decisions that will necessarily reflect the times and events in which they are decided. Yet they are decided with a flexible eye towards the continuity of “judicial precedent” in order to maintain a certain measure of shared stability and advance knowing.

Our Constitution has little meaning and detail inherently within its pages. It wonderfully instead established values, principles and processes to be utilized in putting statutory meat on that skeleton of ideas. And it left it to future generations to provide that bulk in their best wisdom under that framework. That is the true strength of our Constitution and why it has survived. We need to quit looking for some supposed Oracle of Truth in that document; it is not there. We need instead to find a few select people of good spirit, high intellect, and genuine humility who will utilize that special tool carefully and wisely for our times.