Rejecting the idea of a "living Constitution" simply means that a Justice will respect the authority allotted to the legislative and executive branches (and the state governments) by the actual language of the Constitution and will not create new "rights" out of thin air. A Supreme Court Justice should fairly and impartially interpret the Constitution in light of the original meaning of its language, not seek to advance a social agenda by legislating from the bench.
One inaccurate critique of Chief Justice Roberts and Justice Alito during their confirmation hearings was that they would not respect the authority of Congress (it is unfortunate, but not surprising, that Senators would argue for the most expansive view possible of their own authority). However, a pair of cases shows that Chief Justice Roberts and Justice Alito impartially considered Acts of Congress on a case-by-case basis in light of the constitutional provisions at issue.
In Gonzales v. Carhart, 127
It is interesting that Barry mentioned the Court's role in protecting the right of individuals "to speak out on vital issues," as Chief Justice Roberts authored the plurality opinion in FEC v. Wisconsin Right to Life, 127
An Obama-Biden "living Constitution" judicial nominee would likely give Congress more leeway to ban religious and political speech--at the heart of the First Amendment's protection--than to limit, in any way, abortion on demand.
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Brown v. Board of Education and Loving v. Virginia were correctly decided. The Court did not create any new rights but simply upheld the right to be free from invidious racial discrimination expressly provided by the Constitution.
The Fourteenth Amendment, enacted shortly after the Civil War, states in relevant part: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” This provision was designed to ensure that state and local governments would not treat African-Americans less favorably than whites, thus denying them the “equal protection of the laws.”
In Brown v. Board of Education, 347 U.S. 483 (1954), the Court held that racially segregated public school systems “are inherently unequal” and violate the Equal Protection Clause. Id. at 495. The Court held that “the opportunity of an education . . . where the state has undertaken to provide it, is a right which must be made available to all on equal terms.” Id. at 493.
In Loving v. Virginia, 388 U.S. 1 (1967), the Court invalidated a law prohibiting inter-racial marriage, noting that such provisions “arose as an incident to slavery.” Id. at 6. The Court correctly noted that “[t]he clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.” Id. at 10. The Court applied the longstanding principle that “the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the ‘most rigid scrutiny.’” Id. at 11.
The Brown and Loving decisions recognized and applied the compelling interest in eradicating racial discrimination expressly stated in the Fourteenth Amendment.
Thank you, Mr. Sekulow, for your response. I would take issue with you with regards to the Loving decision.
As I read through the decision made at the state level, the contention was that there was no racial discrimination because all persons in the state were affected equally by the law. In other words, all people could marry the person of their choice within the scope of the law, which restricted ALL races from interracial marriage. The Supreme Court was said to have trampled on the state's right to define marriage by its broad interpretation of the 14th Amendment. Some comments written during that time accused the Court of activism and disregard for the Constitution.
Now, lest anyone think otherwise, I agree with you that the decision was properly rendered, and that the resulting expansion of freedom was a very good thing, and that it eliminated yet one more bastion of racial discrimination.
However, your use of the 14th Amendment in this way raises some interesting questions regarding same sex marriage. For couldn't the Supreme Court also, under an appropriately presented case, rule that laws restricting marriage to one man and one woman were equally in violation of the 14th Amendment? If the Court were to decide in that manner, using the same logic that you mentioned, would you also consider it to have been properly decided? If not, why not?
"Brown v. Board of Education and Loving v. Virginia were correctly decided. The Court did not create any new rights but simply upheld the right to be free from invidious racial discrimination expressly provided by the Constitution."
Again Jay: The Tenth ammendment makes it clear that all rights are ASSUMED to exist unless otherwise INFRINGED upon by the constitution or other law. The right to be from from racial discrimination is UPHELD by the constitution, not PROVDED by the constitution.
Good job, Mr Sekulov, keep up the good work. Unfortunately we have too few people like you to stand up to all that is twisted in our system and try to fix it, so thank you!
The American Constitution DENIES BLACKS CITIZENSHIP AND COUNTS THEM AS THREE FIFTHS OF A PERSON
Most of the originators of the American constitution were slave owners, and none believed in racial equality for a minute, despite all the subsequent propaganda to the contrary. As with the Amerinds - who were regarded as a completely separate alien nation all to themselves, the writers of the American Constitution - George Washington and others - wrote specific provisions into the original American Constitution to deal with the Black population.
None of the writers of the American Constitution even contemplated Blacks being accorded citizenship or voting rights in the new republic. When the Constitution was drafted at the Constitutional Convention held from 25 May to 17 September 1787, the delegates agreed that the US Congress should be elected on the basis of the size of the population in the various states making up the union - that those states with the larger populations should have more seats than those with smaller populations.
However a dispute arose: as the majority of Blacks were in the Southern states, and were specifically excluded from having the vote, the White leaders from the Northern states argued that the Black population should not be counted for purposes of representation, saying that the number of seats held by Southern states in the lower house of the national legislature should be based solely on their White population.
The White leaders from the Southern states however argued that this method of apportioning seats did not recognize the wealth and importance of their states; they wanted slaves to be counted equally with the Whites - then known by the phrase "free people."
Finally a compromise was reached and written into the Constitution: each Black would be counted as three fifths of a person for purposes of counting the population of a state. Thus it was written into Article 1, Section two of the American Constitution that:
"The House of Representatives shall be composed of Members chosen every second Year by the People of the several States . . .
"Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."
The founders of what was to become the most powerful and influential nation in modern history therefore not only refused to grant Black slaves citizenship of their new state, but then went on to only count them as part people. www.white-history.com/hwr52.htm
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