The British cultural critic G. K. Chesterton once noted, “Seemingly from the dawn of man all nations have had governments, and all nations have been ashamed of them.” What is true of “all nations” in relation to their governments is true of many “Americans” in relation to the Supreme Court majority.
During the last half of the twentieth century, we the people experienced a social transformation being imposed upon us by a number of justices on the Supreme Court of the United States (SCOTUS). These judges were able to impose their social views upon us by employing what is called a “living document” view of the Constitution. This imposition, no matter how well-intended, undermines our democratic republic.
Most proponents of the “living document” view contend that the constitutional framers specifically wrote the Constitution in broad and flexible terms so that future judges could reinterpret it in light of “the times.” In effect, justices who employ this view from the Supreme Court bench are able to take things out of the Constitution that they do not like and insert things they do.
Past Supreme Court Justices William Brennan, Thurgood Marshall, Earl Warren, and David Souter devoted their careers to doing just that. Today, justices such as Ruth Bader Ginsburg and Anthony Kennedy do likewise.
Consider how the SCOTUS majority bypassed the text of the Constitution and historical tradition in order to create a right to privacy. This right to privacy gave them the rationale to strike down state laws that restricted abortion in Roe v. Wade (1973). Or, consider the “right” to same-sex-marriage that was created out of thin air in the 2015 Obergefell v. Hodges decision. Both of these decisions open the door for radical social transformation and both of them arrive at their conclusions by taking inappropriate liberties in their interpretation of the Constitution.
We are not saying that the Constitution cannot be amended for our current era. We are saying that the nine unelected lawyers of the SCOTUS have no business making amendments themselves. The Founding Fathers specified that the Constitution could not be changed except by the vote of the people; it can be amended only by an overwhelming majority in Congress and in the state legislatures. In effect, they were saying, “the Constitution cannot be amended except by the People, via their representatives.”
Proponents of the “living document” view have managed to subvert the amendment process entirely, imposing social transformation on us by the decisions of a handful of Ivy League lawyers. In effect, they are saying that we the People are either too ignorant or immoral to make decisions of this magnitude; we need activist courts to protect us from ourselves.
By employing the “living document” view of the Constitution, activist courts enable themselves to circumvent the democratic process on social issues. We the People should demand that we not be circumvented. Even if lawyers were trained as theological ethicists or moral philosophers—which they are not—they have no business making ethical and moral determinations on behalf of the People. Supreme Court justices should be interpreters of the law rather than philosopher-kings who legislate from the bench.
In response, we the people should demand an “original meaning” view of the Constitution, over and against the “living document” view. Supreme Court justices should interpret the Constitution in the way that people living at the time of its adoption would have. The Constitution means what it meant to the ones who ratified it in 1788.
Each time the SCOTUS majority leans upon the “living document” view to make rulings that foster social transformation, it undermines us, the People. Consider Justice Scalia’s rebuke of judicial activism in his dissenting opinion in the Obergefell case.
“Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall….With each decision of [the Supreme Court] that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court—we [the People] move one step closer to being reminded of our [the People’s] own impotence.”
“To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”
American citizens have a vested interest in electing a President who will nominate the type of Supreme Court justices who will respect the Constitution of the United States by reading it the way it was meant to be read. They deserve a SCOTUS who will respect its own role as a judiciary branch rather than bypassing Congress to legislate from the bench.
American Christians have even further motivation to elect such a President who will nominate such Justices. We have experienced the havoc wreaked on Christianity when a “living document” approach is employed in biblical interpretation. So as Americans and as Christians, we must say “no Constitutional adjudication without responsible interpretation,” and “no social transformation without democratic representation.”