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October 3, 2018

Why We All Need Constitutionalists on the Supreme Court

Patricia A. Kelly

The elected president, of whichever party, chooses and nominates new justices to fill any Supreme Court vacancies that occur during his or her term. President Donald Trump has nominated two constitutionalist judges since taking office in January 2017.

 

President Trump has been a polarizing figure since he stunned America and the world by winning his current job. Since then, everything in America seems to be about Trump, including reaction to his Supreme Court choices. This should have nothing to do with a measured, fact-based decision on the part of the U. S. Senate about his nominees.

 

The choice of Supreme Court justices should not be political. It should be based on performance and decision-making as a judge, as well as character.

 

Right now, conservatives want constitutionalists to serve on the court. A constitutionalist is someone who believes that law arises from the Constitution. They interpret the Constitution based on what our country’s founders intended at the time of writing it. Liberal justices could be defined as those who believe the meaning of the Constitution can evolve or change from our founders’ intent to something different, new interpretations made by any judge in response to changes in society.

 

Our country was founded, and has thrived, with a three-part government, each branch providing checks and balances on the other two. In the Executive Branch, the president is CEO. He can veto laws, or issue executive orders to get around Congress, which should be making all federal laws, but these orders can be changed by future presidents.

 

Congress, including both the House of Representatives and the Senate, makes our laws, confirmed by presidential signature. The Supreme Court provides a check on the other branches by determining, based on the Constitution and prior case law, whether laws fall within the body of standing law, and adhere to the Constitution.

 

Creating new laws is not the job of the Supreme Court.

 

However, the Supreme Court has done so, a recent example being the decision that gay marriage is legal throughout the United States. Whether gay marriage should be legal nationally or not, this decision was outside the scope of the court, and the approval should have been made by Congress.

 

There have been other flawed decisions by the justices. A good example is the Dred Scott decision, ruling that Dred Scott, a black former slave, could not make a case in court because, under the law, he did not qualify as a human being. Plessy vs. Ferguson upheld the idea that separate schools for black and white children did not violate people’s right to equal treatment under the law.

 

It took years of carefully selected court cases, much the work of later Justice Thurgood Marshall, to prove that this ruling was incorrect, leading to the Brown vs. Board of Education decision, which finally did away with the concept of “separate but equal.”

 

The Supreme Court’s proper role is to interpret and determine constitutionality and correctness of standing law. Even more important – and because of this role – the court keeps the other branches of government from getting out of line.

 

If, for example, Congress passed a law saying that everyone present in the United States on Election Day could vote anonymously without identifying themselves, the Court it would decide, based upon the Constitution, whether this new law met the standard for laws in our country.

 

Our Constitution outlines the rights and responsibilities of citizens of our country. This founding document, though occasionally misinterpreted, is the cornerstone of our democratic republic. If society changes, or unmet needs require changes or clarification, we can and should amend it. It’s been one 27 times, so far. It’s not that easy to do, and that’s good.

 

Changes to this cornerstone should absolutely require agreement of a super majority of our citizens. If such changes, or even interpretations of meaning’ were made by one judge, or even a panel, based on their personal beliefs, our society would end in chaos.

 

All Americans benefit from having constitutionalists serving on the Supreme Court, clearly defined justice and confidence in the law being paramount in civilized society.

 

A good judge makes decisions based on existing law, referred to as precedent, not on his or her own personal beliefs or feelings. Democrats, Republicans, and Americans of all persuasions, should stand for this. Shooting from the hip of personal belief is not the work of a judge.

 

If there’s something missing from our Constitution, let’s amend it. Otherwise, let’s support it and constitutionalist judges – for the sake of fairness and justice in our legal system and in our society.

 

patriciaklly@aol.com

 



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