The Obama administration is doing all it can to bring about the “change” it promised in 2008. If you consider the continued economic and social devastation that it is wreaking “change”, it is doing a very good job. We had grown pretty complacent having jobs, a stable currency, world leadership, and safety so I guess people were bored and decided to try unemployment, food stamps, poverty, and fear as more exciting alternatives.
Obama did not just promise change, he promised to “fundamentally transform the United States of America”. Poverty, crime, and insecurity are not fundamental changes; they are simply the result of a complete lack of leadership and applying wrongheaded policies.
Fundamental change is something else again – a complete restructuring of the most basic foundation of American law – the Constitution.
The Constitution embodies the wisdom of the Founders, and has been a hugely successful basis for law that has created more wealth and freedom for more people than any other document in history.
But, like all documents, even the Bible, it cannot answer questions about itself and what it means, so it must be interpreted. Its authors understood this, so they provided the Supreme Court to answer these questions.
This is the way law works. There is salutatory law, the written law, and case law, the body of decisions that past courts have made about how the statutory law is to be applied in specific cases. When a question comes up, courts rely upon the law itself and what past courts have said in similar cases to reach a decision.
Although that sounds pretty simple, it is not, particularly in 2013. Many of us look at the results of court decisions, like the famous elderly lady who successfully sued McDonalds for serving her hot coffee, and say, “Huh?” How could the court come up with a nonsensical decision like that? But then, do you always agree with your family or friends?
The same is true with Supreme Court Justices. You would think that a group of people who are highly educated in a particular field would all agree, but unfortunately that is not usually the case. Even doctors often do not agree, which is why you get a second, and maybe third, opinion. With lawyers it is even less likely that they will agree. Although it is not possible to predict how a Justice will vote, as Chief Justice Roberts recently proved, we can loosely lump them into one of two camps.
The first can be called constructionists, or originalists, a term some prefer. These justices try to understand what the original intent of the Founders was when they wrote the Constitution, and use that interpretation to reach a decision. They view their role as to merely apply that intent, not to create or repeal parts of the Constitution. Justice Scalia has written on what he calls the “original meaning” theory, which is simply what any reasonable person at the time of the writing of the Constitution would have thought it meant. Sounds simple, no?
Strangely enough, however, the concept taught in the overwhelming majority of law schools and embraced by a huge number of judges, and all judges that Obama would consider appointing, as well as the majority of the current Court, is the so-called Living Constitution theory. The notion is that the Constitution is analogous to a person, which is constantly growing and changing, along with society. These justices believe that the Founders actually intended for the Constitution to be “flexible” and deliberately wrote it in broad and flexible terms so that the Supreme Court would have the flexibility to change its interpretation with time, to avoid supporting “outdated views.”
I think you can see the logical conclusion of the “Living Constitution” theory – the words mean nothing, and only the opinion of the Court matters. Indeed, case law means nothing, because it simply reflects “outdated views” and is no longer relevant. We are seeing this at the moment, as the Supreme Court considers DOMA, the Defense of Marriage Act. Since time immemorial, marriage has been between one man and one woman. Yes, there have been societies where polygamy or other heterosexual variants have been allowed, but there has never been a society where homosexual unions were called “marriage” and equated with heterosexual unions. The Congress codified that in the DOMA passed in 1996 and signed into law by Bill Clinton, who said, “I have long opposed governmental recognition of same-gender marriages, and this legislation is consistent with that position.”
In 2011, however, Mr. Clinton had a change of heart, as many Americans have under the relentless pressure of the Left, and now thinks that the Supreme Court should declare this act unconstitutional. So what? Who cares? Let them have their weddings. How does that affect me?
If in 1996 DOMA was Constitutional legislation, then under the originalist or constructionist theory it would STILL be Constitutional. What has changed between 1996 and 2013? A lot has changed. Mr. Clinton, ever the “populist”, was notorious for changing his views, and his governing style, to fit the mood of the people, which was the secret of his successful presidency. His public positions are a good indicator of the mood of the country, and DOMA is now considered by many as an example of an “outdated view”.
The Living Constitution justices, therefore, would not consider themselves inconsistent if they decide that what was OK less than 20 years ago is no longer OK. The 900 pound gorilla in the room is that this sort of thinking means that none of the rights that we were guaranteed by the Founders embodied in the Constitution mean anything. Under the “Living Constitution” theory, we no longer have rule of law, we have rule of judicial fiat, based upon pressure by whatever elements of society are most successful in making their views heard. Since the 1960’s we know what part of society that is – the Left.
So, keep your eye on the Court’s decision on DOMA and homosexual “marriage”. If the Court decides that thousands of years of human history, not to mention hundreds of years of American history, can be overridden with the stroke of a pen, you can expect all your freedoms, religion, assembly, speech, and your right to bear arms, to fall like so many dominoes behind it.