Judicial activists resist and resent...original intent

By Michael Gaynor

Judicial activism is the bane of America's judiciary.

And the activists in America's judiciary are the bane of America's constitutional government.

George Washington, in his Farewell Address, noted that there is only one legitimate way to change the Constitution: "If, in the opinion of the people, the distribution or the modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed."

Secular extremist judicial activists have disdained George Washington's advice and proceeded to change the Constitution illegitimately.

By judicial fiat.

Largely to promote secular extremism.

The doctrine of original intent is anathema to the secular extremist judicial activists, of course. To them, the doctrine of stare decisis is also anathema, until they prevail, whereupon it becomes their equivalent of Holy Writ.

To them, it trumps the Constitution and supersedes the oath specifically prescribed in the Constitution to uphold the Constitution.

Are the secular extremist judicial activists right?

Of course not.

History empathically shows that they are wrong.

"The first and fundamental rule in the interpretation of all instruments [documents] is to construe them according to the sense and the terms and the intentions of the parties."

So wrote Joseph Story, in his Commentaries on the Constitution of the United States, in Volume III, Section 400, in 1833. More than two decades after he had been appointed by James Madison as an Associate Justice of the United States Supreme Court. Justice Story served as an Associate Justice for 1811 until 1845, was elected President of Harvard Law School, and is considered by many to be the father of American jurisprudence and America's preeminent legal commentator during the first half of the nineteenth century.

Justice Story was not arbitrarily establishing a policy, but faithfully following a well established one.

Justice Story respectfully continued in Section 400:

"Mr. Justice Blackstone has remarked, that the intention of a law is to be gathered from the words, the context, the subject-matter, the effects and consequence, or the reason and spirit of the law. He goes on to justify the remark by stating, that words are generally to be understood in their usual and most known signification, not so much regarding the propriety of grammar, as their general and popular use; that if words happen to be dubious, their meaning may be established by the context, or by comparing them with other words and sentences in the same instrument; that illustrations may be further derived from the subject-matter, with reference to which the expressions are used; that the effect and consequence of a particular construction is to be examined, because, if a literal meaning would involve a manifest absurdity, it ought not to be adopted; and that the reason and spirit of the law, or the causes, which led to its enactment, are often the best exponents of the words, and limit their application."

This is common sense.

Unsurprisingly, Thomas Jefferson and James Madison, the two Founders whom secular extremists enthusiastically invoke in their ceaseless campaign to extend the institutional separation of church and state contemplated by the Constitution to the point at which government is prohibited for acknowledging God and supporting religion generally because a small minority wants it that way, fully agreed.

In a letter to Supreme Court Justice William Johnson, written on June 12, 1823, Jefferson wrote: "On every question of construction, [we should] carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."

The next year, James Madison wrote essentially the same thing: "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in the modern sense." James Madison, Letter to Henry Lee, on June 25, 1824.

Judge John Roberts agrees with James Madison, the Father of the Constitution, and Thomas Jefferson, the author of the Declaration of Independence, as well as Blackstone and Story that the Constitution should be interpreted according to the intent of the Framers when they drafted it (or the amenders when they amended it).

THAT is why the secular extremist judicial activists are horrified that Judge Roberts is poised to be confirmed to replace Justice Sandra Day O'Connor.

AND THAT IS WHY HE DESERVES TO BE CONFIRMED WITHOUT DELAY.

© Michael Gaynor