The Constitution of the United States is sometimes referred to as a blueprint for government. The only trouble with this analogy is that a blueprint very specifically defines the parameters of a structure, leaving little room for adjustment. The Constitution is more a broad outline for a federal system of government that must ultimately and ideally answer to its people. In studying the documents that surround the development and adoption of the work, we can see the founders knew that change was inevitable, though not always foreseeable. The entire system of providing for amendment illustrates that the founders intended that the document adapt (though, wisely, not too easily or on a whim).
Today the Constitution faces continued testing as the nation’s highest court faces nominations for its vacancies. Though cases on abortion and same-sex unions are the talk of the day, they are actually sub-issues of a question that has been part of the debate since the document’s beginnings: the place of the judiciary in government. In other words, “what kind of judges do we want?”
At the center of that debate is whether judges should “legislate from the bench” (be judicial activists) or exercise judicial restraint. In evaluating a candidate for the Supreme Court, we must look at whether she or he sets the law above personal/political ideology, and does he or she interpret the meaning of the Constitution from the wisdom of many methods?
So the question really is, “what kind of lawyer are you?” While many political leaders are lawyers by education, they tend to hold true to political ideology and party position, fueled—we hope—by personal conviction and the interests of constituencies. However, a great number of lawyers who are attorneys, judges or professors are philosophically essentialists when it comes to the law. They see the law as something with an “essence” and to them integrity means upholding the law despite personal/political view, and overturning it only when it is legally viable to do so. Being able to separate what the law is and what one thinks it should be is a skill every good lawyer must have.
As judges and justices, such lawyers should interpret the law by no single method, but through all means, including textual analysis, original intent/historic context, external derivatives and common law principles. To view the Constitution solely through one lens is to reduce the document to a simple blueprint. The record of the framers’ arguments and discussion in the formation of the Constitution—as well as the language of the document itself—states convincingly that deep dialogue and review, using every tool at hand, must be used in order to respect the Constitution as the extraordinary document it is.
Whether a judge or justice practices activism or restraint really depends on our external point of view. They tend to only be activist (in the negative sense) when they decide against what we think is right. So one person’s activism is another’s restraint.
We should be very careful about tinkering with the independence of the judiciary. To say that we don’t want a judge legislating from the bench is one thing. But legislatures have the luxury of leaving the interpretation of their statutory language up to the courts. The Declaration of Independence states (in reference to the King), “He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers. He has made Judges dependent on his Will alone…”
The ideal for a judicial branch of government should be that it consists of legal essentialists who see the law as something more than political ideology, and who interpret our most important national document by a broad array of methods. As Theodore Roosevelt once said to Congress, “The chief lawmakers in our country may be, and often are, the judges, because they are the final seat of authority …they give direction to all lawmaking.”
Peter Wasemiller has a law degree and teaches law-related classes at Fresno Pacific University, where he is director of university grants and advancement research.