Over a Cup of Coffee

The Constitution: Living Document? or Will of the People?

Treatise in progress (not yet complete)......

The above title is understandably confusing unless explained fully. Much of the conflict emanating from decisions made by the courts in the last 30 years, First Instance, Appellate, or even the Supreme Court have emanated mainly from the philosophical approach of judges to the concept of Constitution and Law.

Conservative judges believe that the constitution and the law should be interpreted based on the letter and spirit of that law at the time it was written. They presume that the formulators of either constitution and law made the law as timeless and universal in its application and put extra effort on the clarity of the language so as not to be misinterpreted by future generations. There is an inherent presumption that room for misinterpretation is much smaller if future generations made such an attempt as to determine what the framers meant and intended the details to mean in the space and time context whereby it was written. Hence, these judges believe that the Constitution of the United States, its amendments and the Bill of Rights are "timeless" in terms of applicability until superseded by additional amendments or the framing of an entirely new Constitution. Nevertheless, the most current version is the clear and unquestionable will of the people.

Liberal-activist judges, on the other hand, presume that even if the constitution or law was wisely written "during its time and for its time", it did not take into consideration the nuances of the progress of society and changing values on specific issues and hence, may need to be re-interpreted to be applicable to the current environment to which it is applied. These judges believe that such documents are "living documents" as the prefer to call it. The presumption is that the letter of the law is not exactly meaningful until interpreted according to the values of the current day in which it is applied. Since they are charged with interpreting the law, their research delves more on the spirit of the times instead of the spirit of the law at the time it was written. At best, they believe that they carry the same spirit of the law but applied with the knowledge of the current socio-political atmosphere. At its worst, as we shall see, this is an elitist angle with the arrogant presumption that they possess an exclusive in knowledge of how to apply the law. Embedded therein is the false presumption that they know better than the people who wrote the law.

I would propose that the ultimate logical resolution to this matter relies heavily on the principles of one's hermeneutics. This concept is more familiar with people who have Jewish or Christian Education backgrounds. Nevertheless, we will open it up for discussion since it is the heart of the matter in this debate and one's set of hermeneutic principles (or the lack thereof) is really the foundation for determining not only whether or not one supreme court judge is a conservative or a liberal-activist judge, but more importantly, who has the right angle on this.

to be continued....

posted by The Sola Scriptura Theologian @ 9:32 PM