Picture 2

Picture 2

Mar 13, 2016

Consent of the Governed or a Political Supreme Court?

The conservative method of interpreting the Constitution rests on the foundation of consent of the governed. From that principle, we reason that the Constitution should be understood to mean what it meant when it was adopted, because that's what the governed consented to. In contrast, “living Constitution” liberals believe the Constitution changes based on what people believe is a reasonable interpretation today, without regard to what the people who wrote it understood it to mean. “Living Constitution” is how the 14th Amendment, passed in 1868 when homosexual acts were illegal in every state, is interpreted to require same sex marriage in every state under the Equal Protection clause. Whether you like the outcome or not, how “living Constitution” Justices got there is ridiculous. It was also totally unnecessary. The full faith and credit clause could have been interpreted to mean that a marriage performed in one state has to be recognized in all states. This would have left marriage a state matter, and the 14th Amendment applying to race, as the Republicans who wrote it intended. In 1868, the 14th Amendment was adopted to limit how badly state courts could treat freed black slaves.

Conservatives think Constitutional changes should be made by amendment. Conservatives think changes in the law should be made by legislatures and signed by governors or the President. That's how the governed give their consent. Liberals think that takes too long, so they expect the Supreme Court to find some way to make the law or the Constitution say what they want it to say. Conservatives believe, like Justice Scalia did, that a judge is supposed to rule on what the law is, rather than what the judge would like the law to be. The Supreme Court should not be a place where startling new interpretations are "discovered" in laws that are over a century old. This article is correct that the Supreme Court is supremely political. However, it would be far less political than it is if the Court respected the principle of consent of the governed.

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