Mario Diaz

In The Gay Science, German philosopher Friedrich Nietzsche made a famous declaration that reflected a major shift in philosophical thinking. "Where has God gone?" asked a man in his book. "I shall tell you. We have killed him - you and I. We are his murderers,” came the response from a group of atheists.

While that statement, known as the “death of god,” is just that: a statement, and stands in total contrast to the living God we see working daily in our lives, it reflected a growing philosophical view that had very real consequences. For example, in The Rise and Fall of the Third Reich, journalist William Shirer writes that, "Hitler often visited the Nietzsche museum in Weimar and published his veneration for the philosopher by posing for photographs of himself staring in rapture at the bust of the great man."

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The nomination of Judge Sonia Sotomayor to the Supreme Court presents to us a major shift in judicial philosophy: The Death of the Living Constitution. But unlike Nietzsche’s declaration, this shift will have a major positive impact for us as a society.

For many years a philosophical debate on the proper role of a judge has been raging in our country. Conservatives believe the Constitution should be understood as written and that it specifically provides for a proper way of a amending it. Many liberals, on the other hand, believe the Constitution is a “living, breathing” document that changes with the times, and that judges are the ones to decide what those changes are.

There is no question on which side the majority of Americans are. Rasmussen polls consistently show that about 63 percent of all voters say justices should base their rulings on what is written in the Constitution. Compared to only 30 percent who say they should be guided by perceptions of fairness and justice.

President Obama agrees with that 30 percent. He has said the law can only get you so far and then a judge must determine cases “on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.” Based on that standard, President Obama selected what seemed like the perfect candidate for the Supreme Court in Judge Sonia Sotomayor.


Mario Diaz

Mario Diaz is the Policy Director for Legal Issues at Concerned Women for America.

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