Carol Platt Liebau: The <i>Right</i> Litmus Test

Sunday, October 07, 2007

The Right Litmus Test

Steven Calabresi sets out perhaps one of the clearest explanations of what all Americans should be looking for in a Supreme Court justice:

[T]he proper basis on which we should evaluate the court's performance in this term and in the future is not whether it reaches "conservative" or "liberal" results in constitutional cases, but whether it reaches results that are faithful to the Constitution as written and understood at the time of its adoption.

In practice, of course, many of the outcomes reached by such a method would be more likely roughly to correspond with "conservative" principles. But that's not by design -- it's just because other methods of constitutional interpretation, like those espousing a "living Constitution," open themselves to sweeping opinions by the judiciary based on nothing in the document's actual text. And that, in turn, has the result of enabling judges to enact their policy preferences under the guise of deciding cases. That, of course, readily allows those judges who are seeking to implement policies and arrangements that have never been understood to be constitutionally guaranteed -- finding "rights" like that to abortion, gay marriage or assisted suicide -- to legislate from the bench.


Blogger Dr.D said...

I think the term that is usually used to describe the sort of Supreme Court Justice that you are talking about is to refer to a "strict constructionist," meaning one that goes strictly by what is written in the Constitution. This is what is most urgently needed in this country in general, a return to Constitutional government. This is the central point of Dr. Ron Paul's presidential platform as it has been his whole career in Congress. It would mean a radical re-thinking of the way we function to get the federal government out of all of the areas of our lives that it was never supposed to be involved in in the first place. It would mean an end to the Department of Health, Education, and Welfare for example. Those are all functions that were intended to be responsibilities of the individual States. It would mean that Americans would have to once again become involved in doing things for themselves and it would be a wonderful thing for our entire society. The American Constitution is a wonderful document; it is a shame that we have almost totally abandoned it in the present age.

6:58 PM  

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