What if the President and the Senate Just Pulled a Fast One?
What if the President and the Senate Just Pulled a Fast One? By Andrew P. Napolitano – Lew Rockwell
What if the whole purpose of an independent judiciary is to be anti-democratic? What if its job is to disregard politics? What if its duty is to preserve the liberties of the minority — even a minority of one — from the tyranny of the majority? What if that tyranny can come from unjust laws or a just law’s unjust enforcement?
What if we have a right to insist that judges be neutral and open-minded rather than partisan and predisposed to a particular ideology? What if presidential candidates promise to nominate judges and justices who they believe will embrace certain ideologies?
sWhat if history shows that Supreme Court justices appointed by Democratic presidents typically stay faithful to their pre-judicial ideologies? What if history shows that justices appointed by Republican presidents tend to migrate leftward, toward the middle of the ideological spectrum? What if some Republican-appointed justices — such as Sandra Day O’Connor, Anthony M. Kennedy and David Souter — migrated across the ideological spectrum so far that they became pillars of the high court’s abortion jurisprudence even though the presidents who appointed them publicly expected the opposite?
What if the real business of judging is interpreting words in the Constitution and federal statutes? What if there is no ideologically neutral way to do that?
What if one theory of constitutional interpretation — espoused by people who say we have a “living Constitution” — informs that the words written decades or centuries ago should be interpreted and understood in accordance with their ordinary meaning today? What if this theory lets judges decide what those words mean today?
What if the opposite theory of constitutional interpretation — called “originalism” — informs that the meanings of words in the Constitution and federal statutes were permanently fixed at the time of their enactment? What if this theory binds judges to well-grounded historical meanings of words and the values they express? What if there is no reconciliation between these two theories of constitutional interpretation? What if judges and justices must choose one or the other or variants of each?
What if the Constitution proclaims itself to be the supreme law of the land? What if that means that all laws and presidential prerogatives that are contrary to the Constitution are unconstitutional and the courts before which those laws and prerogatives are challenged have a duty to declare them unconstitutional?