How Strictly Should The Constitution Be Followed?
(Photo by Robin Holland)
This week on the JOURNAL, Bill Moyers spoke with author Jeffrey Toobin about appointees to the Supreme Court should Sen. John McCain (R-AZ) win the Presidency in November.
Toobin also addressed the topic in this week's NEW YORKER:
"McCain plans to continue, and perhaps even accelerate, George W. Bush's conservative counter-revolution at the Supreme Court... [McCain said] 'For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges... in the tradition of "penumbras," "emanations," and other airy constructs the Court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning.'... When it comes to the Constitution, McCain is on the wrong side of the voters, and of history."
Toobin's argument reflects one side of a long-running philosophical dispute about judicial activism, a term meant to describe when judges derive their legal interpretations and rulings from something other than the precise written language of the law.
"At the heart of the concern over judicial activism is the fear that the judge will impose his own personal preferences in his decisions, to such an extent as to ultimately negate the very meaning of law as a body of known rules to guide individual and social conduct... Judicial activists who depict the Constitution as a morally groping document, crying out plaintively for the aid of judges, have nothing on which to base this vision, other than their own self-serving assumptions... A dependable framework of legal expectations, achieved after centuries of painful and bloody struggles, would be sacrificed, while a whole society retrogressed toward a world where edicts are simply issued by whoever has the power at the moment... The question for today is whether one chooses to continue to live under the existing constitutional government, which includes the right to urge changes, or to usurp the power to make changes unilaterally."
What do you think?