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Justice Alito’s First Judgement

The AP doesn’t have a clue… Yeah, so what else is new?

YOU’VE GOT TO hand it to the mainstream media and the depth of their understanding of American Conservatism. Just a short time ago Chief Justice Roberts began his tenure in that office by handing down a decision which dealt with some aspect of physician-assisted suicide in Oregon. Just today Samuel Alito, the Supreme Court’s newest member, handed down a decision regarding an inmate on Death Row in Missouri. In both cases the new justices handed down opinions siding with the constructionist school of constitutional law rather than the activist school. Yet in both circumstances the media reported it as first Roberts and now Alito somehow being un-conservative. The Associated Press headlined a piece released minutes ago ‘Alito Splits With Conservatives on Inmate‘.

Why has the media interpreted these decisions as somehow unconservative? Such an interpretation fits perfectly into the mindset of the judicial activist. Since about a third of our readers are British I will take a moment to explain.

Conservatives in America for the most part are constructionists when it comes to the Constitution. This means they believe that when it comes to settling constitutional disputes, the Supreme Court should go primarily with what the Constitution actually says, and if there is room for interpretation on the meaning of what it says, then we should persue the original intent of the words as best we can. Because the Fathers of the Constitution happened to write a lot (The Federalist Papers etc.) in many cases discovering the original intent is not hard. Constructionists believe that it is unlawful (and unconstitutional, naturally) to change the Constitution by any means except that which the Constitution provides (namely, the amendment process). Most liberals, on the other hand, tend to believe in judicial activism, the school which claims the Constitution is a “living, breathing document” and our interpretation of it should change to suit the age; effectively they want the ability to change the Constitution via reinterpretation every generation.

BUT THE FATHERS of the Constitution effectively made three points with the document: 1) The importance of stability and order, 2) The occasional necessity of change, and 3) The necessity for change to be slow and have a wide support-base. They emphasized the first point by making a constitution in the first place, which implies that the intent to create a settled order of government to stand the test of time. Then there is the second point: in order to stand the test of time, it is sometimes necessary to tweak with the settled order, to further define it just a bit so we can continue to enjoy our freedoms and liberties. The Fathers of the Constitution allowed for this necessity by allowing for the Constitution to be amended via the means in Article V of that document. Which continues to the third point, the requirement that major changes be slow and have an exceptionally broad base of support. The Fathers emphasized this by making the process of amendment so difficult. To lawfully change the Constitution requires a resolution proposing an amendment to be passed by two-thirds of both houses of Congress, a mean feat in and of itself, but even then it only becomes law if it is ratified by at least three-fourths of the States (either by their legislatures or by special conventions convened for that specific purpose). The other method, so far unused, is for two-thirds of the States to request Congress to call a national convention for the purpose of proposing an amendment, then subject to the same methods of ratification. Either way, it’s not an easy task but therein lies the point: liberty and order are best served by a stable framework of government, which is impossible if it’s being continually fiddled with.

The proof is in the pudding, so to speak. If you except the Great British Constitution (which with the effective neutering of the upper house and the submission to the rule of Brussels has, since 1997, changed beyond recognition), then the Constitution of the United States has been the longest-lasting constitution still in force in the history of the world. That’s no small task.

Thus penumbras wane?

BUT BACK TO Roberts and Alito. The media claimed Roberts was breaking with conservatives because he refused to strike down a lower court’s ruling that an Oregon physician-assisted suicide laws were constitutional. The Associated Press, meanwhile, judged Alito as “splitting with conservatives” for “refusing to let Missouri execute a death-row inmate contesting lethal injection”. Because the media are generally in the same liberal camp as the judicial activism proponents they think like judicial activists and a judicial activist would think “Gee, Alito’s conservative so he opposes physician-assisted suicide so he’ll rule against it.” But that’s the point, you ninnies! The job of a Supreme Court justice is to interpret the Constitution not to usurp the legislative authority of Congress by deciding to follow our own whims, fancies, and personal beliefs. The Supreme Court justice must not say whether a law was right or wrong, or whether he would’ve voted for it, he must ask “Does this law contravene the Constitution of the United States” and if it does not then he is obligated to rule as such and to let the law stand regardless of his personal opinion of the law. Legislative power is appropriately invested in Congress, not the Supreme Court nor the President, and the seperation of powers is fundamental to the continued success of our Constitution.

Chief Justice Roberts and Justice Alito have ruled according to the law rather than to their own respective whims. This is to be commended, and could set the tone for the Roberts court as a return to normality after the white squall of Holmesian jurisprudence and spark a concurrent deemphasis of federal power. We can only hope and pray it will be so.

Published at 11:02 pm on Wednesday 1 February 2006. Categories: Politics.
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