What if we all simply decided to interpret the 5-4 Supreme Court decision to uphold Obamacare as a 9-0 vote to overturn Obamacare?
“Well, that wouldn’t be right!” you say. “That wouldn’t respect the rule of law. People can’t just interpret laws anyway they want.”
Why not? That’s exactly what Chief Justice Roberts and the four liberals justices did in the Obamacare case. They either changed the meaning of Obamacare (Roberts) or changed the meaning of the Constitution (Ginsburg, Breyer, Sotomayor, Kagan) to pretend that there is no conflict between Obamacare and the Constitution.
I have a couple of questions: 1) If everyday Americans have no problem properly understanding what these Supreme Court justices mean in their opinions, why do these Supreme Court justices have such a hard time understanding what the Constitution means? And 2) If the Supreme Court can interpret the law and the Constitution anyway they want, then why can’t we interpret their opinions anyway we want?
The common sense answer to number two is, “Because if people interpreted laws anyway they wanted to, we would have anarchy.”
True. But when courts interpret laws anyway they want to, we have something nearly as bad—an oligarchy, where unelected judges rule as kings.
As with anarchy, no laws or rights are safe in an oligarchy. You think your rights of free speech, religion, association, and to bear arms are secure? Not if liberals are on the Court. If the Court can misinterpret or rewrite Obamacare and certain clauses in the Constitution, what’s to stop them from misinterpreting or rewriting the Bill of Rights?
When justices fail to be impartial umpires but insert themselves into the game by either changing the law or the Constitution, our rights are not secure and we cannot govern ourselves. That’s why, as I wrote last week, there is only one type of judicial philosophy that doesn’t result in tyranny—a conservative philosophy, which conserves the language and intent of the law to see if it conforms to the language and intent of the Constitution.
“Oh, but the Constitution is a ‘living’ or ‘evolving’ document!” say the liberals. Nonsense! Do your rights evolve? If they do, one day some judge somewhere might declare that your rights have “evolved” in a direction you don’t like.
For over 180 years, the states had the right to pass laws protecting life in the womb. The text of the Constitution obviously says nothing about abortion. But in 1973, seven unelected justices invented a new right to abortion that overruled the states’ ability to protect life. In effect, the “evolving Constitution” philosophy took away the right to life.
“Oh, happy day!” say the liberals.
Careful. Is the invented right to abortion subject to “evolution”? What if a judge comes along one day and declares that not only do the states have the right to protect unborn life, the U. S. Constitution guarantees the unborn a right to life. Would you accept his explanation that the Constitution is an “evolving document”?
No, the Constitution is not evolving. If it is, then we have no Constitution at all. Why have a written Constitution if we can interpret it anyway we want? Why have red lights if drivers are free at anytime to interpret them as green lights?
In order to govern ourselves the will of the people must to be respected. In our representative republic, the will of the people is expressed through our Constitution and duly enacted laws that conform to our Constitution. When judges change the Constitution or laws according to their own political preferences, they usurp the will of the people and defeat self-governance. That’s why all Americans should demand a conservative judicial philosophy where judges stick to the original meaning and intent of the law.
Please understand, I’m not talking about demanding conservative policy positions on hot button issues such as abortion, marriage or fiscal restraint (although I think those are the right positions). I’m talking about demanding a conservative approach to the law. I’m saying that even if you are liberal on the policy questions, in order to ensure self-governance you must be conservative on how you treat the law.
“Oh, we can use a moderate interpretation,” say the moderates. More bilge! To quote Justice Scalia, “What is a moderate interpretation of the [Constitution]? Halfway between what it really means and what you’d like it to mean?”
If you want to “evolve” the Constitution, then use the means the founders established in the Constitution itself. Go through the difficult process of persuading people to pass a Constitutional amendment. That’s difficult for a reason—the supreme law of the land should not be amended on a whim. Before moving a fence, you ought to pause long enough to see why the fence was placed there in the first place. (By the way, the amendment process exists precisely because the founders didn’t want unelected judges to “evolve” the Constitution on a whim either!)
So should we interpret Supreme Court decisions anyway we like? Of course not. We must insist that everyone interprets the Court’s opinions as written and intended. But we must also insist that judges interpret our laws and Constitution as written and intended. Their oaths are to the Constitution, not to their own political or pragmatic viewpoints. When they fail, freedom fails.
America will remain the land of the free only if our Constitution is respected and enforced. To conserve freedom, we must conserve our founding principle that elites do not rule us, we do. The King is not law—the law is king.
Frank Turek is coauthor of I Don't Have Enough Faith to be an Atheist, and the author of Stealing from God: Why atheists need God to make their case. See more of his work at CrossExamined.org.