NEW YORK, Oct. 23, 2016/ Troy Media/ – Hillary Clinton’s now clearly stated position on choosing Supreme Court justices has more to do with social engineering than appropriate constitutional interpretation.
During the final debate, moderator Chris Wallace asked the key question about the constitution: “Do the founders’ words mean what they say or is it a living document to be applied flexibly according to changing circumstances?”
Hillary Clinton replied that “talk about the Supreme Court raises the central issue – what kind of country are we going to be?” That answer makes the Supreme Court sound more like a politburo working in secret as social architects than a dispassionate arbiter of individually passed federal and state laws.
She presupposes that the court is what shapes society and decides on its direction, composition and character (Sounds very Canadian, doesn’t it?). The constitution clearly left that task to Congress and state legislatures. If Antonin Scalia had not already died in February, her response would have probably been enough to kill him anyway.
Lady Justice is blindfolded precisely because the idea is that laws passed were to be evaluated without passion or prejudice and certainly without regard to personal philosophy on the part of any individual justice.
Clinton went on to say that the Supreme Court determines “what kind of rights will Americans have.” Actually, those rights were already enumerated, after great discussion and debate, within the document itself. The founders even made it easy to find by helpfully labelling them as the “Bill of Rights.”
Clinton elaborated, “I feel strongly that the Supreme Court needs to stand on the side of the American people – not on the side of the powerful corporations and the wealthy.”
Actually, the role envisioned for the Supreme Court was that it stand on the side of the rule of law and be a check on overreaching legislation that violates the limitations incorporated within the blueprint the constitution provides on government action.
Her position blurs the separation of powers and is a violation of a people’s right to self-determination – as expressed at the ballot box – in favour of an unelected body of men and women accountable to no one.
Her philosophy is one which should give pause to anyone who believes that a democracy only functions as it was meant to when those instituting actual rules governing the very nature of our daily interactions are themselves subject to the accountability of elections.
Clearly, each and every law instituted by government can potentially come under scrutiny, thus ensuring that democracy is safeguarded and the rights of the people are not infringed by an overreaching power.
The task at hand imagined for any court was that it determine if government could enact a specific law; it was never meant to take upon itself the determination of whether government should enact a certain law.
Every first year law student is familiar with the “living document” theory of constitutional interpretation which allows for new ways of being and new realities to be anchored in constitutional language that has evolved to mean far more than it ever did at its outset.
The framers of the constitution themselves anticipated that changes would be necessary, which is why they included a mechanism for amending the document – adding to or subtracting from it based on a people’s needs and desires at the time.
The justices themselves were only supposed to evaluate government action based on the document as it existed before them – not to craft a new one through gymnastic verbal interpretations of what words and phrases really mean.
Clinton’s view is not progressive, it is not enlightened and it is not inclusive. All these are loaded buzzwords designed to deflect attention from the truth that such a view is in fact dangerous and exclusionary. Such a view treats people as children in need of parental guidance and supervision – which the Supreme Court should be happy to provide.
It subjects citizens to a very different kind of tyranny – not from a throne, not from a legislative chamber – but from a bench composed of black-robed men and women who will never have to endure the inconvenience of asking subjugated citizens for their vote.
Troy Media columnist Gavin MacFadyen is a U.S. based writer and occasional lawyer. Blending insight and wit, he brings a unique perspective to the issues of the day. Gavin is included in Troy Media’s Unlimited Access subscription plan.
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