7/9/2018 - Terry Paulson Townhall.com
Elections matter. With
a presidential victory comes the right and the responsibility to appoint
Supreme Court justices to the court. Today, President Donald Trump will
announce his next appointment. His promise to appoint originalist judges helped
bring him to office. Instead of allowing the Constitution to become a “living
document” drifting on the winds of opinions, an originalist judge is committed
to keeping the Constitution an anchor that provides a true north for our
country’s laws.
Changing our
Constitution is difficult for a reason. To change it easily leaves our freedoms
susceptible to the whims of context and emotion. The Constitution is not
there to protect government from the people, but the people from an
overreaching government.
Why appoint an
originalist judge? It can be argued that there have been many questionable
decisions by the Supreme Court over the years, but it was a majority of liberal
Supreme Court justices that made two decisions seriously putting our freedoms
at risk.
In 1944, the Supreme
Court, in Korematsu v. United States, upheld the internment of Japanese
Americans during World War II. They found that the need to protect against
espionage outweighed the individual rights of certain American citizens. One
can understand the emotion behind such a decision in times of war, but letting
context negate key rights is a dangerous precedent. Thankfully, we have
apologized to our citizens of Japanese descent, but making the Constitution a
“living document” subject to contextual interpretation puts all our rights at
risk to the prevailing emotions and needs of the time.
In 1927, in Buck v.
Bell, the Supreme Court by an 8-1 decision, written by Justice Oliver
Wendell Holmes, upheld the forced sterilization of those with intellectual
disabilities "for the protection and health of the state." Justice
Holmes ruled that "society can prevent those who are manifestly unfit from
continuing their kind" and ended the opinion by declaring that "three
generations of imbeciles are enough." This degrading decision was allowed
to stand as “good law.”
Supreme Court Justice
Anthony Scalia, in a speech at Chapman Law School in 2005, said, “If you’re
going to be a good and faithful judge, you have to resign yourself to the fact
that you’re not always going to like the conclusions you reach. If you like
them all the time, you’re probably doing something wrong.”
In a 2006 Federalist
Society lecture, Scalia warned about the “Flexibility” of a “living”
Constitution: “That’s the argument of flexibility and it goes something like
this: The Constitution is over 200 years old and societies change. It has to
change with society, like a living organism, or it will become brittle and
break. But you would have to be an idiot to believe that. The Constitution is
not a living organism, it is a legal document. It says something and doesn’t
say other things.”
Even with the right
temperament and sound intellect, it must be difficult for any judge to keep
their own biases from impacting decisions. But any judge convinced that the
Constitution is a “living document” would have a far easier time justifying a
new interpretation to fit their views and the times. Take into account
precedent but keep the Constitution your north star.
May our new Supreme
Court Justice embrace a humility that every judge should possess. Justice
Scalia, in his 1996 dissent in United States v. Virginia, warned judges
and politicians: “It is one of the unhappy incidents of the federal system that
a self-righteous Supreme Court, acting on its members’ personal view of what
would make a ‘more perfect union’ (a criterion only slightly more restrictive
than a ‘more perfect world’) can impose its own favored social and economic
dispositions nationwide.”
May every Supreme Court
justice appointed by any president bring a sense of humility and respect for
the Constitution they are called to uphold.
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