The Times Weighs In

Comes the New York Times to discuss the process by which a Judge should render a decision, writing:

"Now the question is whether Judge Roberts, if confirmed, will, like those two justices (Scalia and Thomas), commit himself to recapturing a distant constitutional paradise in which the court was faithful to the original intent of the framers or whether, like the justice he would succeed, he finds himself comfortably in the middle rather than at the margin."

Ah, me. Let’s begin.

If a Justice is NOT "faithful to the original intent of the framers", how does she interpret the language of the document that they wrote? Judging hardly qualifies as metaphysics; the Constitution is not The Di Vinci Code, containing hidden meanings to be teased out and interpreted as Harry Potter might read tea leaves.

The Constitution is, in essence, a contract, written in reasonably comprehensible English. While reasonable men can, and do, disagree about how to apply the Framers’ intentions to modern circumstances, elementary principles of law demand that jurists restrict themselves to the text and history of a document when they attempt to interpret it. Judges lack the authority to impose their own moral compass or their own policy preferences upon the populace.

No "middle" or "margin" exists when one considers how a judge must act; those are POLITICAL concepts, utterly out of place in a courtroom.

Let’s take (say) racial preferences. The political left supports them; the political right opposes them. But a Court, confronting the question of whether same are constitutionally permissible, must assess the views of those who drafted the 14th Amendment, to assess whether, by "equal protection", they meant to preclude some or all governmental distinctions based upon race. The Justices’ own views on the costs or benefits should make no difference whatsoever. They're not paid to substitute their policy preferences for those of legislators.

Justices must routinely make decisions, despite their disagreement with the underlying policy. If they can’t, they have no business serving on the bench.

Take, for instance, New Jersey’s foolish domestic partnership law. I voted against it as a legislator; were I a judge, what basis would exist for striking it down? Ditto Lawrence, the homosexual sodomy case decided by the US Supreme Court; as a legislator, I’d vote against virtually any governmental regulation of private sexual conduct, but nothing in the constitution precludes government from doing so.

Simply put, there is one – and only one – legitimate method of constitutional interpretation: fealty to the intention of the Framers. Anything else constitutes nothing less than an act of will, not judgment, and such an act exceeds the legitimate scope of a judge’s authority.