Literal Interpretation of the Constitution

NPR’s Melissa Block interviewed Senator Jeff Sessions (R-Alabama), ranking minority member of the Judiciary Committee, on a meeting held yesterday morning regarding President Obama’s selection of a new Supreme Court justice. Here’s the money quote that Block didn’t pursue:

I would like to see a nominee who is committed to faithfully following the Constitution as it is written and that understands that they are not empowered to consult polling data or social conditions as they interpret the existing words of our constitution.

Conservatives, for the past few decades, as Geoffrey Stone wrote at the New York Times on the 13th, “have persuaded the public that conservative judges apply the law, whereas liberal judges make up the law.”  Stone goes on to note the intentionally “open-ended” terms used in the Constitution to describe our liberties: “equal protection of the laws,” “due process of law,” “free exercise.”  Not very concrete language.

Literal interpretation of the Constitution, because of the way that it is written, just isn’t possible.  Judges, whether conservative or liberal, are always required to interpret the Constitution in a way that best suits our current environment.  Conservative judges have a long history of doing just that.  Stone continues:

So, how should judges interpret the Constitution? To answer that question, we need to consider why we give courts the power of judicial review — the power to hold laws unconstitutional — in the first place. Although the framers thought democracy to be the best system of government, they recognized that it was imperfect. One flaw that troubled them was the risk that prejudice or intolerance on the part of the majority might threaten the liberties of a minority. As James Madison observed, in a democratic society “the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended … from acts in which the government is the mere instrument of the major number of the constituents.” It was therefore essential, Madison concluded, for judges, whose life tenure insulates them from the demands of the majority, to serve as the guardians of our liberties and as “an impenetrable bulwark” against every encroachment upon our most cherished freedoms.

Sessions’ desire to nominate only those who don’t “consult polling data or social conditions” represents an attempt to not preserve the Constitution as it was written — in an era before national corporations, the Internet, heart transplants, CPR or even electricity — but to preserve an idea of the Constitution that benefits those who are uncomfortable with a fluid and shifting society, one where the rights of minorities are constantly threatened by the dominance of the majority.

Yesterday, more than a dozen legislators, led by the Congressional Prayer Caucus, came together to press Obama to appeal the recent decision by “activist” Wisconsin District Judge Barbara Crabb (appointed by Jimmy Carter, many have noted) that ruled the National Day of Prayer unconstitutional.  (The Obama administration initially asked Crabb to dismiss the case; she refused.) The history of the National Day of Prayer is long, but recent claims that Crabb’s ruling undermines “tradition” should cause us to ask, Whose tradition?  And what should constitutional mean in 2010 when our country is comprised of so many types of believers living in a world that has little resemblance to the 1700s?

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