Letters: No judicial lawmaking

I was impressed with the depth of legal knowledge displayed in Sam Harding-Forrester’s column this morning. It shows, I think, that he knows much more about legal history and current legal trends than the average American does – perhaps even more than the average legal practitioner.

But Sam omitted, intentionally or unintentionally, two very important counterpoints. Firstly, he argues that the Supreme Court’s decisions on, for example, racism were legal innovations, that they were divergences from strict constructionism. This argument is deeply and indisputably wrong. “We the People” deliberately amended our Constitution to give equal rights to racial minorities. See U.S. Constitution amendments XIII-XV. Those who amended the Constitution were fundamentally committed to an anti-racism norm, willing even to pay the stunningly enormous social and economic costs of a Civil War to achieve it.

The anti-racism opinions of the Warren Court were not, as SHF argues, legal innovations; rather, those liberal decisions were originalist, faithful to the concerns of those amending our Constitution. In fact, if “liberal” means fair, equal and just, true originalists and strict constructionists may often (but admittedly, not always) find themselves supporting “liberal” causes. The Founders were, after all, idealists willing to chase an abstract political dream. Those supporting segregation and bans on interracial marriage are not originalists; they are the legal innovators willing to ignore the Framers’ wishes.

Secondly, Sam argues that we should support Supreme Court Justices who view the Constitution as a dynamic, changing document. His reason is simple: the Supreme Court can promote justice by abandoning original understandings of the Constitution, so originalism and strict construction is bad. But this argument fundamentally misunderstands American democracy and separation of powers. We the people, acting through our legislature, pass laws. The Supreme Court applies and interprets the laws that we pass. If our laws produce unjust results, we the people are responsible for fixing them! That’s called democracy: the people – with all of our vibrant socioeconomic, racial, and experiential diversity and insights – decide what “justice” means, and we pass and amend laws accordingly.

There is, on the other hand, oligarchy: nine unelected, wealthy judges with privileged Ivy League backgrounds, living in the same city with comparatively limited backgrounds and experiences, deciding what “justice” really means and forcing the people to follow. I, for one, prefer democracy. If our Constitution as originally written is unjust, the Supreme Court should just apply it, injustice and all, and wait for the people to correct it. We the people, not the Supreme Court, are responsible for identifying injustice and shaping our Constitution. Supreme Court Justices are responsible only for interpreting the laws we pass – not for changing our laws and imposing their subjective understandings of justice.

Kory A. Langhofer

University alumnus