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I read, as I always do, with interest Cliff Rieders' thoughts on original intent/evolution of the Constitution. Cliff's insights are always appreciated and prescient - as here, he gives us a preview of the confirmation process and his thoughts on how it may play out.
We are fortunate to have Cliff Rieders practicing in Williamsport.
What left me out of sorts about his column was what seemed the assumption that, of course, the Constitution must "evolve," to suit the needs of progressing generations - and that it was, perhaps, odd that Justice Antonin Scalia and now Judge Neil Gorsuch thought, arcanely, that they might be charged with understanding the intention of the drafters of the Constitution.
He seems to posit that the alternative is better, that judges and lawyers are what Scalia said they are not: Moral philosophers, trained to apply concepts of judicial and social philosophy, instead of solid jurisprudence to the resolution of a case.
And this, he said, was supported by nothing less than the word of God. After all, God did not mean it when he said: "Eye for eye," as can be seen in the application of the proposed commandment by men. It would seem strange, however, to describe God as adaptable and his word as transient in light of his clear statement: "I, the LORD, do not change. So you. . .are not destroyed."
Fortunately, Jesus Christ helps us to understand God's original intent in writing this piece of the law. In the book of Matthew, He tells us that the point was never to make sure that each person got his or her "pound of flesh," but rather, that we each learn humility, kindness, generosity and love in the face of evil by laying down our right to retaliate.
Having understood the law of Moses as changing, Cliff proposed the same principle applies to the Constitution and the law. But in each of his examples he shares how judges take modern issues and apply constitutional principles.
This is not evolution, this is originalism at work as judges apply "arcane" principles to new situations.
Cliff would, had he his druthers, allow the judge to not only interpret; but again, become a judicial and social philosopher, evaluating how the Constitution might have "evolved."
But from where would the judge observe such evolution? The answer is patently obvious; he would allow the judge, unconstrained by law, do what was right in his own eyes.
And this is the problem with both "liberal activism," and "conservative activism." Judges, now unfettered from the rule of law, become a law unto themselves.
Of the legislature, our courts long have recognized this (as stated in Marbury v. Madison): "Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
The ability to declare the Constitution changed because it has "evolved," undermines the very purpose of a written Constitution and leaves us a judicial oligarchy.
And that gets us back to Neil Gorsuch. Judge Gorsuch thinks, as did Chief Justice Marshall, that the principles set forth in a written constitution: "are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent."
And Judge Gorsuch tells us what he thinks of the opposing view: "A judge who likes every outcome he reaches is very likely a bad judge stretching for results he prefers rather than those that the law demands.”
It is interesting that Cliff ends with a passing comment about preemption - noting it does not appear in the Constitution. Well, of course, it does. It just has a different name. Another item appears, Article V, describing how the Constitution may be amended. Nowhere does it mention judicial fiat.
Matthew J. Zeigler
Williamsport
Submitted by Virtual Newsroom