Article III, Section I of the Constitution established the Supreme Court. Alexander Hamilton in the Federalist Papers stated that judges under the Constitution would possess “neither force nor will, but merely judgment.” If a law was contrary to the Constitution, then it was void. The high court has the authority to figure out whether laws passed are consistent with the Constitution or not.
For the rule of law to work we rely on members of Congress upholding their oath of office to support the Constitution in the laws they pass, and likewise a president in honoring his or her oath, not to sign laws (or executive orders) that are unconstitutional. Unfortunately the legislative and executive branches (Congress and the president) over the last several years have played a game of ‘“catch me if you can,” making the job of the Supreme Court much more difficult and political.
Although the brouhaha over the selection of our next Supreme Court Justice has died down for the moment, there is no doubt the commotion will be reignited when our new president is sworn into office. All the discussion and hand-wringing about who that person may be centers around the differing theories of Constitutional interpretation.
The late Justice Scalia believed that the Constitution was “dead, dead, dead.” He was a strict constitutionalist, better known as an originalist. He opined that the Constitution was not a living document but must be read exactly as the framers wrote it and has said, “The judge who always likes the results he reaches is a bad judge.” By this he meant it didn’t matter what he personally believed or what was popular in the day’s cultural landscape, but what was the correct legal interpretation based on the Constitution.
How do we know the original intent of the words in the Constitution? We look to the original sources of that day. For a start, the records and writings of the debates at the Constitutional Convention. Likewise the records and writings of the debates in the various state ratifying conventions. Also the Federalist Papers, which explained the Constitution in detail to the people who would vote on it. Newspapers and dictionaries of the day were another important source as was the private correspondence between key leaders at the time the Constitution was written.
And lest you believe the framers were old and stodgy and could not possibly foretell what the future may hold, they wisely included an amendment process, two in fact. The end of slavery, the income tax, prohibition and the repeal of prohibition, and voting rights for women all came about through amendments; the 13th, 16th, 18th, 21st and the 19th, respectively. The Constitution was written to protect the individual’s freedom so why would you want to change it except on rare occasion?
As citizens of a free republic it is our duty to preserve it. If you would like to take a free online course on the U. S. Constitution go to: www.freeconstitutioncourse.com.
Mikie Kerr is the founder of a volunteer group which distributes free pocket Constitutions by partnering with small businesses on the island who make them available to their customers and clients. She lives in Waikoloa and writes a monthly column for West Hawaii Today.