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Saturday, June 11, 2005

Dissipating Constitutional Fog

If the Constitution is to be amended, it must be in accordance with Article V of that document.

Charles Krauthammer’s Thomas’s Originalism is a must-read.  It refocuses us on the true role of the Supreme Court, which was intended to be no more than adjudicating legitimate cases arising under Federal statutes or the Constitution itself, not creation of new law overriding Congress or the states.

A basic concept of Constitutional law, honored too often in the breach, originally was judicial restraint. 

The idea was that prudence and judgment requires judges to make decisions as limited in scope as possible and as nearly tailored to the specific facts of a case as possible.  In a nation as large and diverse as the United States, sweeping declarations of general principle enunciated as Constitutional law usually have disastrous consequences, simply because it is beyond human capacity to foresee all of the implications of a decision. 

Limiting a decision as much as possible to the facts of a specific case allows later room for judges to fine tune decisions to new facts and conditions, as unintended consequences of prior decisions manifest themselves. 

In a sense this might be viewed as an evolutionary approach to Constitutional law.  But, it is not the “living Constitution” beloved to the New York Times’s editorial board, a concept that says mere changes in public opinion are effectively amendments to the Constitution.

Judicial restraint has the virtue of limiting the damage that usually has been inflicted by the ill-considered, sweeping declarations of liberal social-justice principle to which the judiciary have become addicted.  The most notorious and contentious such piece of judicial legislation, of course, was Roe v. Wade’s invalidating thousands of years of social and moral tradition and denying to states the powers reserved to them under the Tenth Amendment.  Unhappily, discovery of a Constitutional right to same-sex marriages, hidden in the shadowy recesses of the Constitution and visible only to socialists, may be next.

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