Wednesday, August 31, 2005

Originalists vs. "Living Document"ists
Watching Bravo tonight, I found a perfect illustration of the difference between activist judges and constitutionalist judges. From The West Wing episode entitled 'The Short List':

BARTLET:Peyton, do I have the right to put on an ugly plaid jacket and a loud polka-dot tie and walk down Main Street?
BARTLET:Where in the Constitution is that right guaranteed?
HARRISON:First Amendment. Freedom of expression.
BARTLET:What about the use of cream in my coffee? Surely, there can be no free speech argument to be made there?
BARTLET:So you have no objection to the state of New Hampshire passing a law banning use of cream in coffee?
HARRISON:I would have strong objection, Mr. President, as I like cream as well, but I would have no Constitutional basis to strike down the law when you brought this case to the Supreme Court.
BARTLET:As I lose the votes of coffee drinkers everywhere.
The problem is, there is no right to put cream in one's coffee. You'd think liberals, of all people, who have no problem eliminating one's right to own a grenade launcher would recognize that.

During World War II, cream and all dairy products were strictly rationed. In short, people were unable to put cream in their coffee, by government order. Are liberals really arguing that government rationing is unconstitutional? They'd have to be, if there is a right to cream in one's coffee.

Just because one should be allowed to do something, and ideally they would, does not mean that action is a right protected by the constitution. If you want a right to put cream in your coffee, then you'd better amend the constitution to protect it. Oh, and find some way to prevent God from wiping out dairy cows the world over—for if He did, it would certainly be ruled unconstitutional by the Ninth Circuit.


Dave Justus said...

You could construct an agruement that their was a Natural Right to cream in one's coffee, and therefore that the Constitution should be ammended to protect that natural right.

I happen to think that the 'Right to Privacy' is a good candidate for this.

However, when it is far easier to re-write the constitution in a courtroom, there is really no need to bother with a constitutional ammendment at all. The is one reason we haven't had one in such a long time.

RFTR said...

So, if cream in coffee is a natural right, then how do you dispense with the possibility that cows really could go extinct through the will of nature/God/whatever controls such things?

Natural rights can't be contradicted by nature—that's an impossible paradox.

Now privacy, I'll grant you, dodges that test pretty well. I do think privacy is a natural right. But I don't think that it's the job of our courts to interpret natural rights—it's their job to interpret the Constitution.

If a judge wanted to say in a decision "I abhor that I am forced to decide this way, and we need an amendment to fix this problem," that's fine. But that's not what the left wants him to do—the left wants him to find some way of saying "ohhh yeaaaaah, suuuuuuuuuuuure it's in the document—cuz, you see, the document changes over time."

Dave Justus said...

I didn't say that the arguement for a natural right to put cream in one's coffee would be a very good one :)

Now, the example doesn't specify that the ability to own cream would be effected, rather the ability to place cream that one owns into coffee seems to be the question. One could construct a pretty strong arguement on the right to do what one wishes with one's possessions.

As for the desirability of ammending the Constitution when needed, and I think it should be a 'living document' in that sense, and probably does need several ammendments to adapt to our changing views on society, I fully agree with you.

I merely point out that with a activist judicial philosophy, which we have, it is much harder to ammend the constitution than it is to convince Judges.

One example here is that I have seen some pretty good arguements that at least some of the changes from the expanded view of the Commerce Clause are very beneficial (and even more compelling to conservatives, trying to revert to a strict constitutional intererpretation would be very destructive.)

In an ideal world, we would all agree that this sort of decision is beyond the pale in the future and ammend the Constitution to properly refect existing laws that we didn't want to be invalidated.

This won't happen though, because no one is going to spend huge ammounts of time and energy to ammend the Constitution when doing so wouldn't actually change the existing legal fabric. While such an approach would probably prevent problems in the future, those are unknown and no one is animated by an unknown problem to devote this sort of resources to it.