Supporters of President Trump wanted him to fill the vacancy on the Supreme Court with a jurist who would strictly adhere to the Constitution and not read into it things that are not there, who would not engage in so-called judge-made law via court decisions, that’s what they would tell you. They want “strict interpretation”.
So with that in mind, I guess, our new president on Tuesday evening officially announced his choice for the replacement of the late conservative justice Antonin Scalia. He now goes before the Republican-dominated U.S. Senate for confirmation.
He is Judge Neil M. Gorsuch, a federal appeals court judge in Denver.
The following excerpt from a story in the New York Times might best describe the nominee’s legal philosophy:
“Ours is the job of interpreting the Constitution,” he wrote in a concurrence last year. “And that document isn’t some inkblot on which litigants may project their hopes and dreams.”
Now, on the one hand, I have to find it positive that a Supreme Court justice has respect for the Constitution, but who would say otherwise? But that document is not somehow self-interpreting. It takes legal scholars to explain much of it — things can be read in more than one way. Devoutly religious people don’t agree on what the Holy Bible says.
While we certainly would not want our justices to stray so far from the intent of our Founding Fathers that the framework they set forth was totally unrecognizable, things have changed since 1788, the date the Constitution was ratified by the then 13 states.
We don’t have slavery anymore. Women have the right to vote. Okay, those facts are the result of amendments to the original document. But it is no longer legal to make black people attend schools separate from white people. A historical high court ruling once held that it was completely permissible to force black people to use separate public facilities, the so-called “separate but equal” doctrine (Plessy v. Ferguson, 163 US 537 (1896) but then a half century later came another court decision (Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) and it was held separate was not equal, therefore discrimination was held to be illegal. Of course not everyone agreed with that, particularly in the Jim Crow South, but overall public attitudes had changed (of course racism, like cockroaches, survives, and knows no geographical boundaries).
At one time it may have seemed perfectly right that women could not vote. It was a cultural thing. Heck, it has been written that the framers did not even envision common people who were not property owners voting. Attitudes on that changed.
It seems strange that a learned person would think that a constitution, which is a framework, not an actual statute or code section, would be interpreted 100 percent the same when society has moved from horse and buggy to space travel and from men in charge and women tied at home to the stove and babies to workers in the labor force and CEOs of corporations and leaders in governments of the world.
Yes, we still need to adhere to the basic principles of the Constitution and perhaps rely more on amendments than court decisions to enact changes, but in the end, as I stated before in this post, the Constitution is no more self-interpreting than the Holy Bible. And I realize that there are those who claim that the Bible is clear in everything it says and there can be no alternative interpretations. I can’t argue with anyone like that, except to say, no I’m right and you’re wrong, case closed.