Robert F. Jakubowicz Spinning the Constitution



This past month marked the 211th anniversary of the Supreme Court decision, Marbury v. Madison. Most Americans know, or should know this case from their high school education. It is the landmark case in which the court declared that it had the final "say what the law is," a court power not written in the Constitution.

But what many Americans don’t seem to know is what has happened to such lawmaking. According to the tea partiers and their right wing friends, everything necessary to understand the Constitution is written in it. And all one has to do to understand how it applies to today’s issues is to read the document.

While it is easy to read the relatively short Constitution, it is difficult, and in many instances downright bewildering or impossible to try to figure out how to apply the 1787 text to many of the constitutional issues that have arisen since that document was first approved. Many of these matters simply could not have been foreseen by the framers of the Constitution. Also some provisions like the need to maintain a "militia" for the "security of a free state" don’t apply any longer because there meaning has gone with the passage of time.

Judges and anyone else reading the Constitution have the same difficulty of just how Its old and brief text should be applied in what has been a greatly changed American society from what it was in the late 18th century.


Judges, however, unlike the rest of us have to actually decide cases, many of which have important consequences. The basic problem is that the brevity of the Constitution and the complete lack of even hints in it of how to deal with many issues -- such as abortion, same sex marriage, electronic snooping, corporate free speech, religious freedom for businesses not to serve certain customers, and regulating political campaign finance -- have caused the judges over the years to read a lot of things into that document that was not written in it by the framers.

This has caused a major constitutional law shift from the focus on the text of the Constitution to the focus on the personal views of the judges to decide the law under that document. This state of constitutional law affairs prompted one law textbook author to write that: "It is no exaggeration to say that ‘the Constitution means what the Supreme Court says it means.’" This fluctuation by justices of the Supreme Court about constitutional law based on the majority makeup of the court has significantly politicized it.

Senate hearings on approval of presidential judicial picks have become partisan, political fights over seating a justice based more on his or her political philosophy rather than judicial restraint in not doing this to avoid interpreting the Constitution. As a result, a permanent spilt on the court has resulted which reflects the political views of the presidents who selected the justices and the senators who approve the nominees.

Presently there are four so-called conservative justices picked by GOP conservative Presidents Reagan, George H.W. Bush and George W. Bush, four so-called liberal justices picked by Democratic progressive Presidents Clinton and Obama, and one so-called swing justice picked by Ronald Reagan who more often than not votes with the conservative side.

Republicans and conservatives consider Justice Antonin Scalia, and those justices who follow his lead, ideal justices, These justices play along by touting themselves as originalists in interpreting the Constitution and not as judicial activists in rewriting that document. The fact of the matter is that the Constitution cannot be interpreted today in many instances based on its actual wording.

For example, Scalia engages in judicial activism by writing things into the Constitution. He has voted in favor of extending "freedom of speech" to physical acts, such as burning an American flag. He also voted to extend this right to nonhuman entities like corporations. None of this is written in the Constitution. Scalia has been criticized by other jurists for voting in favor of individual gun rights under the Second Amendment because its original and relevant meaning for keeping militias no longer exists today. Scalia’s judicial critics say he should have deferred to the District of Columbia law regulating firearms.


The liberal side of the court also engages in this freewheeling Interpretation of the Constitution, one of the more notable decisions being Roe v. Wade. In that case the majority used a broad range of judicial speculation to find an unwritten right of privacy which included a right to an abortion. This right, according the court, exists whether under the 14th Amendment’s right of personal liberty, the ninth Amendment’s reservation of rights by the people not enumerated in the Constitution, or in the penumbra (the faint edge of a shadow) of rights emanating from the Bill of Rights.

The Supreme Court has become too political with the justices using their personal views to decide cases. Unfortunately the public and politicians have become accustomed to this and seek a court packed with a majority of justices favoring their respective sides. We need judges, especially Supreme Court justices, whose main qualification is judicial restraint from using personal views in deciding cases and who do their job by trying to figure out the framers’ purposes beyond their text and the fair consequences of such purposes today.

Robert "Frank" Jakubowicz, a Pittsfield attorney, is a regular Eagle contributor.


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