Although I’m a conservative, I’d like to argue for a concept here not on the basis of a political agenda, but more on the basis of supporting the logical strands the Founding Fathers used to establish our Constitution. I think it is easily supportable that those original Framers intended to set up the framework of the constitution to be self-supporting, and internally protective.
When government goes trolling for arbiters of justice at the Federal level, it does so, ostensibly, with the intention to find those judges ready to defend and support the Constitution of the United States. Why? Interestingly enough, I would argue that it is less the preservation of the document as it is the preservation of a standard. In the tripartite world of federal government, the role of the Supreme Court, for example, is in fitting the lawmaking of a Legislature and the administration of the Executive Branch with the codified emanations of the Constitution of the United States, and with no other. Why haven’t we sought our fitment with the Magna Carta or some International court? It is expressly because the Supreme Court’s job has never been to see how we interact “legally” with documents from other lands.
The Constitution of the United States has been the “point document” for the greatest of experiments, and of an experiment that is not yet completed. That experiment solidifies the idea that neither tyrannies of dictators, kings, or oligarchies nor the purest of democracies (the purity of which have never materialized) has ever adequately represented the will of the people governed, and that this representative democracy would be the best effort on the part of man to insure that representation, especially over time. The Constitution is the umpire of that effort, and it is used to determine the “strikes” from the “balls”. Even though we had the Declaration of Independence already extant, the aforementioned founding Fathers clearly understood the imperative to codify the relationship of our new government to its citizens as much as they put pen to paper in order to clearly delineate their cause for separation from England. The two documents had two very different objectives, and both have succeeded to this point in fulfilling those objectives. The Declaration lit the fire of just cause in the hungry bellies of the American people, and the Constitution walled off the federal government from becoming another megalithic, overreaching, and citizen-violating England, or the like. With its armory full of the Bill of Rights, the Constitution guaranteed those citizens (and only those citizens) that fell under its rubric protection and the right of protection from government encroachment. Without said guarantee, the experiment would cease to be, for the experiment was precisely in this moat around the rights of the people. Without the moat, you have a very different castle; without the
Constitution as originally implemented, you have a very different Government. If and when government abrogates Constitutional protections, it gives itself different parameters and, thus, a different definition of what it is and what its limits should be. In short, if you change the terms of the Constitution and its implementation, you’ve started a new and different experiment.
When you look for someone to adjudicate American jurisprudence at the federal level, you seek someone who adheres to the original experiment, for that is the whole point. Yes, there is the obvious nod to stare decisis, that building of case law intended not to shore up some shaky and somehow inadequate constitution foundering in a new world it could never anticipate, but, rather, to magnify and solidify the Constitution’s proper reach and limits to all areas of American public life, in the sense of cellular replication and the repeating of the DNA pattern to those cells.
As the final arbiter of issues Constitutional, a Supreme Court justice MUST seek to preserve the Constitution, for in that he preserves the terms of the aforementioned experiment. And just as in a scientific experiment one utilizes the scientific method and repeatability, a Supreme Court justice has to insure consistency by relying on a repeatable standard. This standard does, justly I believe, invite a tautology. The standard by which to judge the constitutionality of a decision is the Constitution, which is occasionally judged for integrity by how well it adheres… to itself.
Were a Supreme Court justice to seek to “amend” the Constitution by interpretation(s) wrought by another source or sources, wouldn’t that justice be guilty of changing the terms of the experiment, of introducing leaven, as it were, to the loaf? Wouldn’t he be thus abrogating the authority the Constitution exercises in determining the validity of a decision, inasmuch as the Constitution IS the standard used to adjudge the efficacy of an argument? Since the Constitution validates itself by itself, to introduce another measure is to insinuate the inadequacy of that venerable document and thus to cynically declare the experiment dead; it did not work as designed, it could not withstand the test of time. Of course, this begs the question: how much time is enough to decide to end the experiment? This question is best answered if no foreign contaminants are added to the recipe- they act as additional variables that exponentially increase the causal possibilities that would lead to the death of this experiment. Without intrusions by external elements, you can see if the parameters live up to or fail the hypothesis which, in this case, is government of the people, by the people, and for the people.
Thus, a Federal or Supreme Court justice must, by definition, be conservative; that is, he must first and foremost be concerned with preserving the terms of the Great Experiment, and in the original configuration delineated by the original Experimenters. This is of great advantage to people of EVERY political spectrum, provided they adhere to the rules of the game; that is, they agree that we ARE founded on and need to continue to follow the Constitution of the United States. A truly conservative Supreme Court justice, for that matter, is ideal in what he claims he cannot do: he cannot subject canonicity to his own personal perspective or agenda, by definition. Thus, the average liberal, if he or she is still interested in the Constitution being the law of the land, should not be but felicitous in his erudite inspection of Chief Justice Roberts, for example, for that liberal can trust without question that the Chief Justice of the Supreme Court of the United States, by defining himself as a conservative, will preserve the clear interpretation of constitutionality whether he likes it or not. In other words, a conservative Federal judge, by definition, boxes himself in by the very Constitution he seeks to protect. He can be known. If a liberal cause can be shown to be Constitutional, the conservative jurist MUST protect that cause, or he is not, in truth, a conservative and is, in truth again, applying an outside standard to the issue at hand. He or she just applied a liberal standard to the decision, and would probably not live with themselves very well- the inconsistency would drive them to the nearest ACLU office to pick up an application.
When people make an overt attempt to install whom they would call a “liberal” or “activist” federal judge, what they are really doing is telling others that they would prefer to utilize an outside standard, something foreign to the Constitution, to judge the constitutionality of an action or decision. Now, I am not saying that an activist judge automatically comes in with the Communist Manifesto or Sharia Law and says to himself, I must use these other documents with the Constitution to properly adjudge this problem. I am, however, saying that, by definition, that liberal jurist approaches the problem with the belief that he or she will implicitly know when to apply a “different” or “dynamic” interpretation of the Constitution. My question would be, “What is the canon you’re using to determine that this is the right time to make such an application of dynamic interpretation?” Is there a document, or a body of experience, or a common sense of rightly behaving humanly that the liberal judge will use to know when to apply a corrective action to the plain interpretation of the Constitution? How does one know when one is behaving rightly? How do you know you’re standard is the right one? When a judge advocates for a “new” perspective, from where does that perspective hearken? Perhaps it is anecdotal, and the judge’s personal experience in, say, abortion, has lead him to a position celebrated by abortion rights proponents. If those proponents accept that judge’s anecdotal evidence as judgmentally sound, what would be their argument if that same judge had a new experience that changed his or her perspective to being supportive of the pro-life community? Using what amounts to non-standard decision making to support a position leaves one with no argument to any changes in a given position, since any standard applied is arbitrary and subject to the whims of the applicant.
Ultimately, the seating of a liberal judge at the Federal level is a cynical act. A liberal judge must be, by definition, elitist. He or she has stepped outside the bounds of the Constitution and added “something” to the adjudication process by fiat. He or she has applied no restraint, and has deliberately tainted the legal environment. He or she cannot be trusted to stay within the bounds of “the Law” for he or she has forgone the legal boundaries entrusted to them by the very document they swore to uphold. They cannot be relied upon, by people of any political persuasion, to render a fair decision. Fair to whom, and based on what? Fairness assumes rightly dividing and applying a standard, after all. Fairness has no meaning without the concomitant standard that defines what is fair and what is not. Ultimately, it is the conservative judge, especially at the Federal level in the United States, who will insure that no contamination of the most spectacular and historically relevant experiment ever conceived and implemented will occur, and who can be reliably trusted to excise those disease-ridden decisions that would otherwise, by implication, denigrate the efficacy of the one document in all the world capable of encapsulating the dreams of those under the rubric of human institutions and hold at bay those wolves of government seeking the juggernaut of self-serving power. It is the conservative judge, you citizen of the United States, that will protect your rights under the Constitution of the United States and who will, by definition, protect you from someone else’s definition of what a citizen (read: slave?) should be.