Monday, October 31, 2005

Alito Nomination: Your Constitution at Work

Anyone who knows me well, knows that I believe the Constitution of the United States of America, as originally written and properly amended since, is the most brilliant political document ever written - the opportunity to support and defend it is one of the reasons I chose the profession I did. Its system of checks and balances brilliantly distributes power and authority across the branches of our government in such a way that no one branch can get too far out of balance with the others, thereby establishing supremacy. I don't think it's perfect, but it's pretty close.

What we're seeing with Alito's nomination are the checks and balances at work. We saw it to a lesser extent with Roberts' and Miers' nominations, but it is really coming clear this morning.

The checks and balances on the Supreme Court are several, but the ones I'm talking about today are the ones that determine who sits on the Court in the first place. Simply, the justices are not directly answerable to the electorate through the ballot box, but are appointed and 'consented to' by politicians who are.

These elected politicians - the President and the members of the Senate - are the filter through which public opinion and temperament pass in order to reach the Court. This filter allows the mood of the country to influence the interpretation of our laws in a very indirect way that is both necessary and necessarily indirect.

The mood of a country can change on a dime in a historical sense, but we don't want our guiding principles to do so. A country whose every policy and principle changed with the wind would not last long, with a race being run between internal strife and external mistrust to determine which would strike the death blow.

The relative constancy provided by our Constitution and the Court that interprets it are important to maintaining a balance that keeps mood swings (political change) from tearing us apart or leading other nations to fear dealing with us out of mistrust.

Equally important to the country is that the Constitution and the Court be capable of adapting to actual, long-term values changes in our national personality. For instance, over a long period of time the national psyche came to the conclusion that the phrase "all men are created equal" should apply to all adult men and women in good standing in the community, not merely male, white landowners, and that this principle should permeate all aspects of the Constitution. In some cases, the Constitution itself was amended to reflect these emerging, widely held values. In others, Court decisions brought about the changes in how we applied the Constitution in much a broader sense.

NOTE: This is not to say that I believe in the 'living Constitution' meme often proposed by non-originalists, because nothing could be further from the truth. The primary method for changing the Constitution to reflect emerging values should always be the amendment process defined in it. The Court has a role in keeping the interpretation of the Constitution current as well, but this authority should be rarely used and only in ways that use the formal amendment process as a basis. For example, the court applied equal rights for women under all clauses of the Constitution once the country's principled value change that women are people, too, was demonstrated by ratification of the 19th Amendment. The power to broadly apply values changes can be and has been misused in other instances and has been improperly defended using the 'living Constitution' argument (don't you just love the 9th Circuit Court of Appeals?).

Now, lets get back to Alito and what his nomination means today.

The 'filter' of the appointment process that I talked about before allows for the current moods of the Nation, some of which may eventually result in long-term values changes, to infiltrate the Court, and this is a good thing.

Currently, the mood of the country is (or at least during the last several election cycles has been) moving towards Constitutional originalism (which is defined for this discussion as strict interpretation of the written Constitution, as amended, with a lesser emphasis on narrow, contentious precedent-setting cases). I believe recent decisions like the approval of government-sponsored land theft in Kilo v. New London and the restriction of our First Amendment represented in the approval of McCain/Feingold are exactly contrary to the Constitution's protections on property ownership and political speech, and are (among others) a driving force in this current 'mood swing'.

President Bush ran on a platform that included a plank that he would appoint originalists to our nation's courts. This plank is one of the reasons he received the nomination of his party and was elected to office. Thus, the originalist 'mood' has made its way into the White House and is represented in the nomination process.

Likewise, many of the Senators currently in office ran on platforms that included 'originalist thinking' with respect to how they would vote on approval of presidential appointments to the bench (any bench). The group of 'originalist' senators is mostly Republican, but doesn't include all Republicans (the most germane to this discussion being the chairman of the Senate Judiciary Committee) . Nor does it necessarily constitute a majority in the Senate - that is yet to be seen.

Based on recent appointment battles (to SCOTUS and other US district courts and courts of appeal), there are clearly many Senators who don't hold an originalist view of their role in the appointment process - at least not one consistent with my interpretation of their role. [Failure to provide consent in the form of the vote indicated by the Senate's own rules is neither advice nor consent. Nor is voting based on one's narrow, extreme political views on a single issue rather than a nominee's qualifications to interpret our laws - something individuals on both sides of the aisle are guilty of recently.]

Regardless, what we're seeing in all the media hyperactivity regarding Alito's nomination is the importance of the appointment process as a filter for the nation's mood. Clearly, the originalist camp has a head start, because a guy that apparently reflects this mood has been nominated. Senators who don't support an originalist view now have the opportunity to play catch-up and see if their views can predominate in the Senate. Ultimately, the Senate will (hopefully) vote on Alito based on what they deem best for their constituent states.

We'll all know whether the process came to the right decision in the coming election cycles when we see how We the People react with our votes - who we keep or toss based on the outcome at the ballot box.

Thinking Constitutionally ,



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