What do Judges do When They Apply the Constitution?“That’s the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break. But you would have to be an idiot to believe that. The Constitution is not a living organism, it is a legal document. It says something and doesn’t say other things.”
— U.S. Supreme Court Justice Antonin Scalia, February 2006. “The framers discerned fundamental principles. … But our acceptance of the fundamental principles has not and should not bind us to those precise, at times anachronistic, contours. We current justices read the Constitution in the only way that we can: as 20th-century Americans. … The ultimate question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendants will learn, cannot be their measure to the vision of their time.” “I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention. Nor do I find the wisdom, foresight and sense of justice exhibited by the framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. When contemporary Americans cite ‘The Constitution,’ they invoke a concept that is vastly different from what the framers barely began to construct two centuries ago. … The men who gathered in Philadelphia in 1787 … could not have imagined, nor would they have accepted, that the document they were drafting would one day be construed by a Supreme Court to which had been appointed a woman and the descendent of an African slave. ‘We the people’ no longer enslave, but the credit does not belong to the framers. It belongs to those who refused to acquiesce in outdated notions of ‘liberty,’ ‘justice’ and ‘equality,’ and who strived to better them.”
“We must never forget that it is a constitution we are expounding … a constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”
— U.S. Supreme Court Chief Justice John Marshall, in McCulloch v. Maryland (1819) (emphasis in original). Critics of the independent judiciary make it sound like the process of judging cases is something a computer could do. They assume that the words of the Constitution have clear, unambiguous meaning waiting to be applied mechanically by judges to the cases before them. The law, and judging, especially judging constitutional issues, don’t work that way. Not surprisingly, being a judge requires exercising judgment to determine the meaning of what are often complicated constitutional questions. Courts are often asked to determine whether laws are constitutional. What does this mean? The U.S. Constitution and 50 state constitutions set limits on the power of government to make laws. The framers of the U.S. Constitution did not attempt to write a law for every imaginable situation that could arise. Instead, they created a document of general principles. They often used broad, somewhat ambiguous terms like “equal protection under law” and “due process of law.” It is up to judges to analyze and apply these terms to the cases that come before them. “Times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
— U.S. Supreme Court Justice Kennedy, in Lawrence v. Texas (2003). Judges must interpret the words in the U.S. Constitution in order to give them meaning. As times change, judges must read the U.S. Constitution in light of these changes. For example, no computers or Internet existed when the U.S. Constitution was written. But when judges are asked to rule on the constitutionality of laws regarding the Internet, they are able to do so because they can interpret the words to have meaning in today’s modern world. Although the people who originally wrote the U.S. Constitution probably were not thinking about gay, lesbian, bisexual and transgender equality, we need judges who will interpret the Constitution in our modern world to recognize and protect our rights as GLBT Americans instead of restricting them. This approach is neither radical nor activist. It is faithful to the original conception of a Constitution as a document for the ages, and to the Constitution’s promise of equal protection of the laws. |
