Photo of Bill Moyers Bill Moyers Journal
Bill Moyers Journal
Bill Moyers Journal
Watch & Listen The Blog Archive Transcripts Buy DVDs

« Honoring Our Veterans | Main | Ask the Reporters: Exposé on Bill Moyers Journal »

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.

Thomas Sowell of the Hoover Institution takes the other side, arguing for judicial restraint:

"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?

  • Is it appropriate for judges to base their legal interpretations and rulings on something other than the exact wording of the law? Why or why not?
  • Do you agree with Sowell's concerns that judicial activism undermines constitutional government and subjects the country to the ideologies of unelected judges? Why or why not?

  • TrackBack

    TrackBack URL for this entry:


    Concerning the question, "How Strictly Should The Constitution Be Followed?", the following article on the importance of understanding 'original intent' may be of interest:

    The United States is in contempt of it's own constitution 1st and 18th ammendment. Both are clearly disobeyed under this new rule of leadership. The First- Article[I]Congress shall make no law respecting and estasblishing of religion. Then how come you gotta be religious and only christian to become president? The eightenth-Article[XVIII] The manufacture,sale, or transportation of intoxicating liquors are prohibited.Then how come you got all these legal alcohol sales causing drunk driving. How come alcoholic christians? WHO IS REALLY UNPATRIOTIC? Does breakihng the rules of th land give You that tittle? To answer your question, Yes? I do believe it was written to be followed!

    If I be the Anerican congress,I would have put orders of impeachment for Bush's "let's see, where are those weopens of mass destruction" joke alone. "Not under here". How dare he! And its just been one big laugh for the media everything this man says. There is nothing funny about killing and destruction. What is the media on?!!! I say to the American troops of every branch I beg of you to please lay down your weopons.You are doing a very bad thing in following orders of George W. Bush. It has been proven over and over that this war is without cause. George Bush has admitted to approving torture of these wars and has plans to Invade and torture Iran before he leaves office. For thc sake of what's right, humanity and the acts that you would not want happening here in America, you must stop. It is the most couregious thing any and all of you could ever do .And we as American people will honor you with the medical treatment and housing you have earned and each and everyone brave enough to cease fire a purple heart metal for non compliance with anmout of control dictation that enjoys the slaughter of these people who did nothing against America.

    I am a women that has been on this earth for 78 years,and believe me if it weren't for my Christian life of 69, I would have been the one to bring up charges on The Bush clan for treason 71/2 years ago .He needs a gag in his mouth along with Chenny I would like to add.I have never saw such a EGOTISTICAL attitude in one man that is suppose to be some one with dignity and Integrity and for the good of all(which Bush has not) I feel he should be brought up on criminal charges, and why have we let him in there to do so much damage to our Country?
    Shame on us. But it is never to late to correct a wrong,tomorrow is a good start to removing him.
    What is frighting is look what we have for choices.
    Yes we need our Constitutional restored rights NOW.
    We also need to throw all the bums out of Congress and start all over ,they are not TRUE American as I see all the waste of the American peoples hard earned money going to every to every place else but to the help of America.
    We have people in our country starving,HOW DARE they.I feel as far as Senators go Sen. Byrd is the only one that is doing what he promised the people he would do ,God Bless Him.
    I truly believe they run for office for their Agenda. WE need to get Back what AMERICA was built on "IN GOD WE TRUST"We better set up and take notice before we are lost.
    Thanks for listening,

    Why is it that the mainstream journalists think that Scott McClellan is the only person to point out the perfidy of the Administration? David Barstow wrote a whole article on how the media were manipulated by ex-generals and other military implanted by the Administration. The New York Times had information, and the Pentagon's 8,000 papers are on the internet for all to see.

    Everyone is blaming McClellan, when all he's done is corroborate what's already out there and, by this time, should be common knowledge. What I want to know is why isn't ANYTHING being done to bring the people who instigated that travesty to justice? What is the matter with our government?!? These are criminal activities!

    Thank goodness, we still have a place like this where we can at least ask the questions. Anyone out there know any answers???

    Why is it that the mainstream journalists think that Scott McClellan is the only person to point out the perfidy of the Administration? David Barstow wrote a whole article on how the media were manipulated by ex-generals and other military implanted by the Administration. The New York Times had information, and the Pentagon's 8,000 papers are on the internet for all to see.

    Everyone is blaming McClellan, when all he's done is corroborate what's already out there and, by this time, should be common knowledge. What I want to know is why isn't ANYTHING being done to bring the people who instigated that travesty to justice? What is the matter with our government?!? These are criminal activities!

    Thank goodness, we still have a place like this where we can at least ask the questions. Anyone out there know any answers???

    It is worth noting that Mr. Toobin said: "And I think the fact that Warren both was a progressive Justice and came from outside the monastery of judges is something that a President Obama, if there is one might well look to in making appointments."

    Was the choice of word "monastery" a Freudian slip? Five of the Justices, including J. Roberts are Catholic and, in general, conservative.

    Will Sen. Obama base his choice on religion? Perhaps a liberal Methodist? (although see this: ).

    However, consider this:
    "The United States was founded on core principles, such as liberty, personal privacy, and equality, which ensure that individuals are free to make their most intimate decisions without governmental interference and discrimination. "

    Did Sen. Obama write this? He and Sen. Clinton are co-sponsors. It's in the "S. 1173: Freedom of Choice Act" that came out the day after the Carhart v. Gonzales decision to ban partial birth abortions (or intact D&E; see ) was announced.

    If I remember correctly, Jefferson didn't write "personal privacy" or meant for "equality" to mean "between the races or sexes".

    This is not exactly good history or Constitutional scholarship.

    I don't like any of the candidates: Sen. Obama is PAAAC ( ), or pro-choice and Sen. McCain is for the war and perhaps one in Iran.

    For me, like the last two election cycles, it comes down to who will appoint justices to overturn the illogical "undue burden" nonsense of Roe to eventually outlaw abortion. It comes down to numbers: thousands die needlessly in the war, but millions of human persons die each year (worldwide) to abortion ( ). Abortion needs to end before the war does.

    May God bless us all.

    Mr Moyers was invited by IAW to be a panelist on judicial accountability. I was a featured speaker, one of the many who were disappointed that Mr. Moyers, one of our greatest corruption fighters did not or could not attend.

    I spoke May 15, at the Citizen's Forum on Judicial Accountability hosted by the International Assembly of Whistle blowers, one of many programs during a week long event on Capital Hill.

    I told my story, of my twenty year battle for justice to have my case heard. I was one of two dozen chemically injured teachers and students in a school roofing project gone wrong. Our cases were called a walk-in-the-park, textbook-tort-litigation.

    So what went wrong? My case and that to the other injured teachers and students fell into a judicial system even more treacherous. Our cases were filed in the Harrison County Circuit Court in Mississippi, a state notorious for corruption, where justice is the exception, not the rule.

    I told about the five Mississippi judges who ruled on my case. The first (Vincent Sherry) was shot to death in his home. The second (Jerry Terry) stalled my case for nine years before being removed for bias, the third judge committed suicide after his indictment for embezzlement, the fourth, Mississippi Supreme Court Justice Oliver Diaz, was indicted for bribery and fraud, and the fifth judge (John Whitfield) was convicted and sentenced to ten years in a federal prison for bribery and fraud --- along with my former attorney (Paul Minor) who was also convicted for bribery, and fraud.

    I discovered in 2000 how state judges were being bribed and turned my information over to federal investigators. My information led to the conviction of my judge and my own attorney.

    Judicial Oversight? None. Mississippi's watchdog agency never barked. It's purpose is to stand guard to protect its judges, not police them. The state bar only suspended the convicted and the state Commission on Judicial Performance has not uttered a word of reprimand.

    What happens to judicial whistle blowers who are not protected under any laws? Judicial revenge. We are stripped of our constitutional rights, silenced by gag orders, and beaten so harshly by the system that most do not want to take that that risk again.

    Some of us spoke at the Citizen's Forum, and so doing took great risks. It is too bad so few hard our stories.

    Definition of "Activist Judge": a judge that does something that you disagree with.

    Considering When the Declaration of independnece,Constitution and Bill of Rights was written and how much was edited out for their passage, It is the 'Spirit' of these document that must be followed. Basic Tenents of 'For the People, By the People', Life liberty & the pursuit of happiness,All 'men' are created Equal' They are guidlines, progessive and evolving.. a Point towards the most perfect Union-Our potential as a Beacon to mankind.
    Anyone one who sits on our Courts and most certainly on OUR Highest must constatnly PROVE they are abidding by those fundemental Principles.Thus there should NO LONGER be 'Life time Appointments' If they fail to show in everyway they are acting on the behalf of OUR values, they must not only be Unseated ..theymust be Prosecuted,ie Scalia for 'torture vs Punishment' documented Evidence this man is Unfit and corrupted.

    With the war being revealed as a lie......

    Has the Bush Administration killed more Americans than the 911 terrorists?

    If the war was waged for dis-honorable can it ever end for America honorably?

    By bringing justice to those who were destroyed, wounded, and damaged by the lies. Bring Justice into the White house.

    With this knowledge revealed, if one single more US soldier dies for goes beyond a National tragedy.

    Where is the Justice? Dear Lord where ?

    The Constitution is supposed to be alive, according to Thomas Jefferson. So many issues were not around during that period. So why do we allow judges to hide behind the idea that since it is not in the Constitution it cannot be valid?

    I do believe Pres. Jefferson stated the Constitution should be a living instrument, paraphrased of course.
    Why is this not challenged when one side speaks of defending the Constitution, which means assuring it is dead?!

    I will actually answer the question, some posting do not, then I will express my opinion on the parts of governments and you blame.

    If you do not skip how my experiences relate to The Blogs questions, when you read the end you will have a better understanding of my post on this topic.

    Just like truly setting-up ones' life for having and raising the first child, with considerations for natural and the rests' side affects of having first child or adopting first child past 40-years old.

    I once was a Substitute of all subjects imagineable, E.xception S.tudent E.ducation Teacher, FootBall Coach, PE Teacher and former successful and popular Head Teacher, for doing things to maintain their focus and attention over profit (within the biggest Private Tutoring Company in the world) all with innate problems of LDs and environmental problems of my own from bad parent/father and another/mother was a person privately, in huge company, working with unstable indivduals and is now a teacher of at risk students, both horrible to bad parents, mostly male parents using sexist control tactics, which embarrasses me, as a male, let alone frustrated me at times. As you can imagine these all, the terrible schools systems (even with the best schools, who disrespect not brain important subjects), the fact that the way the students were being raised and thus affecting me (the teacher)and the fact that I could prevent all this from detroying me (as it nearly does every year to my mother, as it chooses her health over committment of all she could sacrifice )helped me to fail at teaching (even though with a ton of the help of professors and ton of credientals , at most prestiegous teaching university at Florida, inspiration and personal experience I felt I could instill, as I was told).
    So I post with experience, with such horrible situations gone wrong, far form the worse, we hear about; however, it depends upon the person (I can take physical abuse , in my family it never happened; however, with my self esteem I could never take even the exterme mental abuse and isolation feelings).
    A Huge Majority of over worked and stressed parents, I have interacted with, would rather make appearance, Brain-Washing THEIR child, with what they have learned, right or wrong, and then delegate from there (just like our Bought Politicans). Result is letting him or her run a muck trying raise themselves; from the male side of my family it was males are not treated as tough and any thing requiring intimate guildence is ignored.

    Now, read what else I have typed in this post, while keeping in mind the above.
    We should be able to read and understand The USA (it was not written for countries that have United States, let alone non-white land owners people) Constitution; cannot really have an educated opinion if it is just based upon what one hears about it. Laugh or dismiss if you will, but most of us cannot actually read it (when written in current American English) and understand it (we are not challenged to think in complex terms, unless it gets someone profit).

    With the reading and understanding of it by all, with all that in tails, we should be able to discuss it, among all of us, and then bring to our representatives, not politicans, for added input. Only then should we even be changing The USA Constitution.

    You all are at fault (I know many right now are mad, because I do not type 'we'); however, I do my very best do all that I type hear and even more, when I trust who I am volunteering with. I am a Dem. and yet I have give my truly liberal demands to be addressed and met (for when The Dem. win The USA Presidency and more seats) and until then I will have nothing, beyong voting Dem., to do with DNC and all its parts. I am forever voting for the best party, thus NEVER EVER vote for to date Conservatives in disguise as Independents and REPUBLICANS; Moderate is really just left of Hard Line Conservatives. Yet, I discuss and debate with all people.

    to dennis...the name of the book mentioned by bill at the beginning of this segment - a government ill executed: the decline of the federal service by paul c. light

    "No law" is pretty clear. It doesn't mean "some laws," or "no laws except what common sense tells us." "No law" means no law.

    And yet the first amendment requires that "Congress shall make no law...abridging the freedom of speech"

    Perjury is a law abridging your freedom of speech.

    To interpret is an action. EVERY judge is an activist judge. That is their job, to take the action of interpreting the law.

    If the supreme court (for example) were really concerned about the "original intent" of the framers, they would find our standing army unconstitutional under the second amendment case they are current considering.

    I have come to treasure any activism: All. Noise so loud may better us. Inactivism? Now that's annoying.

    To Grady Lee, a 5 to 4 majority is still a deeply divided body. Though such a majority has deciisive power in making law, it does not render a people unified in the sense which Toobin's "the public" conotes. If he meant majority, he should have said majority. Morality involves concsience, not statistics. Abortion is a moral issue as well as a legal issue. I'm as liberal as you probably, but no majority will ever have the right to speak my consience for me.

    Question: How strictly should the Constitution be followed?

    "We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

    Answer: Nature's perfect union is equality. The unification equation of science that Einstein spent his life searching for is simply = . And Religiously equal is the truth that shall set us free. Equal is the Contitutional truth we must follow!
    Equal truly lights the way.


    Think of the Supreme Court as the parents of the U.S. Government. Think of our whole system as a dysfunctional family. Sadists and perverts rule the roost. They are the parents' favorites.

    perspicio: I thought you maharishis had an answer for everything. Try reviewing the archives (105 days, what was happening here?). "I am become Shiva, forecloser of arguments." Stay on your side of the Mississippi, you brahmin.
    My fondest dream is to become a Supreme Court justice. Nominate me Barrack! Recommend me, Jeffrey and Bill! I love to write opinions.

    Great efforts Bill, thank you!

    There are so many smart people around; why is the country now going down the drain??? It is this SYSTEM that is no longer working --- "a government ill designed". Talk is cheap. Act!

    Excellent conversation. I will definitely check out the books. These are topics that are very important. Thank you!!!

    "Bill has now remained a hostage to PBS underwriting for 105 days."

    -Grady Lee Howard

    Please elaborate.

    Poor rob b never heard of polls, public opinion or majority rule. I guess Rev. Hagee could just turn his big hairy hoser on whomever disagrees. But then maybe rob talks to Jehovah on a big red phone?

    Toobin talks like a press secretary, advancing an ideology. He made a statemnt of fact as to what "the public" thinks and wants on the issue of abortion. That kind of bias just hardens peoples feelings and makes real understanding that much more difficult to achieve. His remark leaves half "the public" feeling like they aren't even part of "the public". The public's divided man. Knock off the liberal bias. Just tell us the facts.

    The consitution is open to interpretation - ALL judges are political activists - that's why we need judges who interpret the constitution's original purpose - to protect the people from KINGS - Today's KINGS wear corporate dress and flag pins.

    Re: May 23 segment on Bisphenol A. You maybe interested in this. There is currently a web site that gives the impression of being an independent non profit source of information on this chemical. It is not !! In fact it is registered to American Chemistry Council.

    Domain ID:D2728383-LROR
    Domain Name:BISPHENOL-A.ORG
    Created On:23-Mar-1998 05:00:00 UTC
    Last Updated On:13-Sep-2006 16:15:34 UTC
    Expiration Date:22-Mar-2010 05:00:00 UTC
    Sponsoring Registrar:Network Solutions LLC (R63-LROR)
    Registrant ID:29908127-NSI
    Registrant Name:American Chemistry Council
    Registrant Organization:American Chemistry Council
    Registrant Street1:1300 Wilson Boulevard
    Registrant Street2:
    Registrant Street3:
    Registrant City:Arlington
    Registrant State/Province:VA
    Registrant Postal Code:22209-2307
    Registrant Country:US
    Registrant Phone:+1.703741553
    Registrant Phone Ext.:
    Registrant FAX:+1.703741653
    Registrant FAX Ext.:
    Registrant Email:

    Gentlemen,FYI the title of Toobin's book is "The Nine: Inside the Select World of the Supreme Court." We would not be having this problem if FDR had been allowed to pack the court to 15 members to institute the anti-capitalist legislation this rotten country so desperately needed in the 1930s.Now comes another Great Depression! The Federalist Society should more properly be called the
    "Proto-fascist, anything big business wants Society." Roberts and Alito are Wall Street slimemolds, while Scalia and Thomas are Nazi moles. The others are typical wealthy dingbats. Bill has now remained a hostage to PBS underwriting for 105 days.

    Judges must base all their decisions on the exact wording of the law. That's the law. The problem is people have different interpretations of exact words. Remember Bill Clinton saying that it depends on what the meaning of "is" is. When someone claims that a judge is being activist, it's a good bet that the judge made a ruling against that someone's position. When a judge rules in favor of someone's position, it is unlikely that someone would accuse the judge of being activist. No doubt, there are truly activist judges who do threaten a constitutional government and the Constitution provides means for removing with them.

    I WOULD aslo LIKE TO KNOW THE NAME OF THE book also that was announced before Toobin was introduceThank You.

    Before Toobin was introduced, Bill mentioned a book. I was just entering the room and was unable to get the complete title.

    Can someone please give the title and author?

    The 1803 Supreme Court, in deciding the case Marbury v. Madison granted the courts the authority of Judicial Review.

    Without Judicial Review we wouldn't be having just these debates about judges over-reaching. However there is nothing in the literal text of the constitution granting the courts Judicial Review.

    If Marbury were to be heard by the current court, how would they find? If they found no basis to support it in the constitution then they would lose most of their authority, wouldn't they?

    Does anyone else find it ironic that one of the greatest powers the court has is not actually found anywhere in an exact reading of the constitution?

    "Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction." Thomas Jefferson to Wilson Nicholas, 1803 ...I think that says it all, unfortunately we have a President who considers the Consitution (which by the way allows him all the rights and privileges of any citizen) to disrespect it by saying "it's just a G-Damned piece of paper. Why that man is still in office is a mystery to me. "First, does the government serve the common good of the people who are governed, or does it serve the selfish interests of those who wield the power of government? Government that serves the self-interest of the rulers is tyrannical." Aristotle- And there you have it. We now have a Tyrannical Government whose interest is not for the Good of the people but for the select few. Philosophy and ideology still have a place in this Country and not just used for Public opinion, self interest and Prositution of the Country which gave them the Power and wealth. Disguested in Austin, Texas

    Post a comment

    THE MOYERS BLOG is our forum for viewers' comments intended for discussing and debating ideas and issues raised on BILL MOYERS JOURNAL. THE MOYERS BLOG invites you to share your thoughts. We are committed to keeping an open discussion; in order to preserve a civil, respectful dialogue, our editors reserve the right to remove or alter any comments that we find unacceptable, for any reason. For more information, please click here.

    A Companion Blog to Bill Moyers Journal

    Your Comments


    THE JOURNAL offers a free podcast and vodcast of all weekly episodes. (help)

    Click to subscribe in iTunes

    Subscribe with another reader

    Get the vodcast (help)

    For Educators    About the Series    Bill Moyers on PBS   

    © Public Affairs Television 2008    Privacy Policy    DVD/VHS    Terms of Use    FAQ