"Judicial Activism" Vs. "original Intent"

The New York Times reported recently on a survey showing one in seven Americans knows John Roberts is chief justice of the Supreme Court but two-thirds can name at least one judge on "American Idol." I think before anyone is allowed to comment on President Obama's nomination of Elena Kagan to fill the Court's vacancy, he should be tested.

We'll be hearing a lot about "original intent" and "judicial activism" in coming days as debate heats up over her nomination.

"Originalists" claim the Constitution is immutable due to its clarity and precision, altered solely by 27 Amendments. Jurists, they insist, must interpret laws according to the Constitution's original intent, not make law from the bench.

Hogwash! First, whose intentions are they talking about? Imperious Hamiltonians? Or Jeffersonian populists? The Constitution is a mishmash of compromises and ambiguities, and judges have been making law since the Judiciary Act of 1789. Second, the Constitution has always been embroiled in controversy...specifically because it is not clear and precise.

During the 18th century, the Court established dozens of constitutional precedents, defining implied vs. expressed powers, First Amendment rights and the extent of interstate commerce and taxing powers. In 1803 (Marbury v. Madison) the Court first declared a law of Congress unconstitutional, and in 1810 (Fletcher v. Peck) it established federal sovereignty vs. states' rights. Neither power was ever enumerated in, no less implied by, the Constitution.

To assert, as do conservative Justices Scalia and Thomas, that they are objective guardians of the original intent of the Constitution, with a kind of Spock-like immunity from preconceived philosophical positions is utter poppycock. (Thomas might recall one of the original intents of the Founders was that he was only three-fifths of a white man.)

Constitutional strict constructionists would have you suppose the Framers were so dim-witted as to believe circumstances would never arise requiring judicial elucidation. In fact, the Framers knew they had fashioned an imperfect document -- at the time, the best compromise possible. They specifically established the judiciary as an independent, co-equal branch,
expecting it to fill in their blueprint through, in the words of constitutional scholar David A. Straus, "evolutionary accretion."

One original intention of the Framers is indisputable, however: their dedication to individual liberty and social justice. But it would be left to future jurists to expand those principles to more Americans, if necessary by commonsense interpretations. Judicial activism is what has allowed a Constitution created for an agrarian society of four million people to remain viable in heterogeneous 21st century America.

Those with the power and influence never yield them willingly. Strict construction is and always has been cover for those seeking to hang onto the status quo in an increasingly diverse society.