We are once again faced with a partisan battle over the nomination and seating of a Supreme Court Justice. This time it’s Brett Kavanaugh. The screaming and yelling coming from the Progressive has already started mostly concerning Roe v. Wade with some objection over Kavanaugh having to do with the Second Amendment. For these people maintain the integrity of the Constitution rarely, if ever, rises above the frenzy of angry accusation. The basic question is whether or not the Constitution should be strictly interpreted or should it be considered a “living document” and handed over to the whimsy of activist judges so that they can apply their own personal policy preferences and dispense social and economic justice which was Barack Obama’s vision for the Court.
There was a clarification of this issue in a debate between the late Justice Antonin Scalia, an originalist and Justice Stephen Breyer, a judicial activist, who presently is on the bench. It took place on January 13th, 2005 at American University Washington College of Law and was hosted by the U.S. Association of Constitutional Law. The Nain topic debated was “Constitutional Relevance of Foreign Court Decisions” although other ancillary topics were discussed.
The essence of the debate addressed itself to the question as to how far the Constitution could be stretched, if at all. Should decisions be kept within the parameters of American law, both existing and trending, American jurisprudence and American thinking and culture. In the debate Scalia believed that the above mentioned elements were the ones to be adhered to in the interpretation of the Constitution and that the Constitution was to be interpreted as written, not re-written and added on to.
Justice Breyer, on the other hand is a judicial activist. He believes that the Constitution is a “living document”. He took the position that we are all humans and by implication that we of the planet Earth, by some magic, are very much alike in matters of law, philosophy and culture. This, of course, is not the case. But, this type of thinking allows one, on the court, to consider the judicial reasoning of foreign decisions and to apply them without citing them. This is one process by which a Judge, who wants to imprint his or her own philosophy onto the Constitution, that is, get from point A to point B, but, cannot do so by applying American precedent and jurisprudence can attain that goal by applying the law of a court of a foreign sovereign. This leads to the making of law, not by representative government but, rather, through judicial fiat. The Constitution then becomes whatever five out of nine Justices say it is at any time on any give issue. The ultimate result will be that we, in fact, will have no Constitution. This is the basic reason for appointing originalist Judges as Trump has vowed to do.
As a post script to the above, the reader is advised that this tape is listed as part of C-Span Archives at P.O. Box 2909 West Lafayette, IN 47996-2909 or shop at c-span.org orcall1-877-ONESPAN. It is also designated as C-Span Video Tape 185122-1 Part 1 of 1.
It is worth a look if you can find it and explains much of what is going on presently.